Texas Politics Today
2017–2018 Edition
Texas Politics Today
2017–2018 Edition
Mark P. Jones
William Earl Maxwell • Ernest Crain
with Morhea Lynn Davis • Christopher Wlezien • Elizabeth N. Flores
Australia • Brazil • Mexico • Singapore • United Kingdom • United States
Texas Politics Today,
2017–2018 Edition, 18th edition
Mark P. Jones, William Earl Maxwell,
Ernest Crain, Morhea Lynn Davis,
Christopher Wlezien, Elizabeth N. Flores
© 2018, 2016, 2014 Cengage Learning
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Brief Contents
Prologue:
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Texas’s Political Roots
Texas Political Culture and Diversity
Texas in the Federal System
The Texas Constitution in Perspective
Voting and Elections
Political Parties
Interest Groups
The Legislature
The Executive
The Judiciary
Law and Due Process
Local Government
Public Policy in Texas
xxi
1
29
56
78
112
138
166
198
236
260
288
314
v
Detailed Contents
CHAPTER 1
Texas Political Culture and
Diversity 1
Political Culture, Partisanship,
and Public Policy 2
Ideology 2
Conservatives and Liberals in Texas Today 3
Partisanship 6
Public Policy 6
Texas’s Cultural Regions 8
Texas Cultural Regions 8
Politics and Cultural Diversity 14
Texas and the U.S. Abortion Debate: From Roe to
Whole Woman’s Health 45
States as Laboratories: Marijuana Legalization 47
Federalism and Casino Gambling 49
Applying What You Have Learned about
Texas in the Federal System 50
Texas in the Federal System by Greg Abbott 51
CHAPTER 3
The Texas Constitution in
Perspective 56
Texas Constitutions in History 57
Texans’ Struggle for Equal Rights 14
Early Texas Constitutions 57
Cultural Diversity Today 20
Reconstruction Constitutions and
Their Aftermath 58
Applying What You Have Learned about
Texas Political Culture 24
The Face of Latino Immigration
by Ana Hernandez 25
The Texas Constitution Today 61
Bill of Rights and Fundamental Liberty 61
Separation of Powers 63
Legislative Branch 63
CHAPTER 2
Texas in the Federal System 29
What Is Federalism? 30
Unitary Systems 30
Confederal Systems 30
Federal Systems 31
The U.S. Constitution and Federalism 31
Types of Powers in Our Federal System 32
The Powers of the National Government 33
Implied Powers of the National Government 34
The Early View: Dual Federalism
and the Tenth Amendment 34
The Development of Cooperative Federalism 35
Civil Rights versus States’ Rights 36
Texas and the Federal System 38
Coercive Federalism and Texas 38
Federal Grants-in-Aid in Texas 39
Indirect Federal Benefits: U.S. Military Bases
in Texas 40
Unfunded Mandates 41
The Affordable Care Act: A Challenging Case
in Federalism 42
vi
Executive Branch 66
Judicial Branch 67
Voting Rights 68
Public Education 68
Local Government 68
Amending and Revising the Texas
Constitution 70
Amendment Procedures 70
Recent Constitutional Amendments 71
Criticisms of the Texas Constitution 71
Attempts to Revise the Texas Constitution 72
Applying What You Have Learned About
the Texas Constitution 73
The Constitutional Right to Education
by Holly McIntush 74
CHAPTER 4
Voting and Elections 78
Political Participation 79
The Participation Paradox and Why
People Vote 79
Who Votes? 80
The Practice of Voting 80
The Functions of Political Parties 131
Voter Turnout in the United States and
in Texas 82
The Party in the Electorate 131
Reasons for Low Voter Turnout in Texas 85
The Party in Government 131
Types of Elections in Texas 90
Primary Elections 90
Who Must Hold a Primary? 90
Financing Primaries 91
The Party as Organization 131
Applying What You Have Learned about
Texas Political Parties 133
One Face of the Texas Tea Party
by Julie McCarty 133
General Elections 93
Special Elections 96
The Conduct and Administration of
Elections 96
County-Level Administration 96
Ballot Construction 97
Counting and Recounting Ballots 100
Electronic Voting 101
Election Campaigns in Texas: Strategies,
Resources, and Results 101
CHAPTER 6
Interest Groups 138
Types of Interest Groups 139
Economic Groups 139
Noneconomic Groups 139
Mixed Groups 140
Interest Groups’ Targets and Tactics 141
Lobbying the Legislature 142
The General Election Campaign 102
Influencing the Executive Branch 144
Money in Election Campaigns 104
Targeting the Rule-Making Process 144
Who Gets Elected 107
Targeting the Courts 147
Applying What You Have Learned about
Voting and Elections in Texas 108
Everything’s Bigger in Texas, with a Twist of Red
by Luke Macias 108
CHAPTER 5
Political Parties 112
Characteristics of American Political
Parties 113
Two-Party System 113
Pragmatism 114
Decentralization 115
The Development of the Texas Party
System 115
The One-Party Tradition in Texas 115
Ideological Factions in America and Texas 116
Conservatives, Liberals, and Texas
Democrats 117
The Rise of the Republican Party 119
Conservatives and Moderates and Texas
Republicans 124
The Organization of Texas Political
Parties 127
Shaping the Political Environment 148
The Balance of Political Power 151
Texas’s Most Powerful Interest Groups 151
A Tale of Two Lobbying Efforts:
Tesla vs. TADA 152
Interest Group Alliances and the Dynamics
of Power 154
Sizing Up Interest Groups and Their
Influence 155
The Positive Role of Interest Groups 155
Criticisms and Reforms 156
The Regulation of Lobbying 159
Ethics and Lobbying Reform Efforts
in 2015 161
Applying What You Have Learned about
Interest Groups 162
The Practice of Environmental Lobbying
by Luke Metzger 162
CHAPTER 7
The Legislature 166
The Limited Legislature 167
Legislative Terms and Sessions 167
Temporary Party Organization 128
Legislative Salaries and Compensation 169
Permanent Party Organization 130
Legislative Staff 169
Detailed Contents
vii
Electing Legislators 171
Bureaucratic Accountability 229
Qualifications 171
Accountability to the People 229
Geographic Districting 174
Accountability to the Legislature 229
Powers of the Legislature and Its
Leaders 180
Powers of the Presiding Officers 180
Powers of the Legislature 181
The Legislative Process 184
The Legislative Committees 185
Accountability to the Chief Executive 230
Bureaucratic Responsibility 230
Applying What You Have Learned about
the Texas Executive Branch 231
The Texas Executive Branch: Does it run you,
or do you run it? by Drew DeBerry 231
Scheduling 187
Floor Action 188
Conference Committees 190
How a Bill Becomes a Law 191
Applying What You Have Learned about the
Texas Legislature 193
On Being a State Legislator: A View from the
Inside by José Rodríguez 194
CHAPTER 8
The Executive 198
The Governor’s Office: Qualifications, Tenure,
and Staff 199
Qualifications and Elections 199
Tenure, Removal, Succession, and
Compensation 200
Staff 201
The Governor’s Powers of Persuasion 203
The Governor as Chief of State 203
Governor as Party Chief 204
Legislative Tools of Persuasion 204
The Governor as Chief Executive 208
The Texas Administration 212
Elected Executives and the Plural Executive
System 212
CHAPTER 9
The Judiciary 236
Legal Cases and Jurisdiction 237
Civil and Criminal Cases 237
Original and Appellate Jurisdiction 238
Court Organization 239
Municipal Courts 239
Justices of the Peace 239
County Courts 242
District Courts 243
Courts of Appeals 244
Court of Criminal Appeals 244
Supreme Court 246
Juries 247
Grand Jury 247
Petit (Trial) Jury 248
Selection of Judges 249
The Politics of Judicial Selection
in Texas 251
Ethnic/Racial and Gender Diversity 255
Applying What You Have Learned about
Texas Courts 256
Choosing Judges: My View from the Inside
by Wallace B. Jefferson 256
Appointed Executives 215
Boards and Commissions 217
Characteristics of Bureaucracy 218
The Bureaucracy, Politics, and Public
Policy 225
Clientele Groups 225
Public Policy and the Iron Texas Star 226
The Legislature, the Lieutenant Governor,
and the Speaker 228
viii
CHAPTER 10
Law and Due Process 260
Civil Law 261
Types of Civil Law 261
Issues in Civil Law 263
The Elements of Crime 265
The Crime 265
The Control of Information 228
The Criminal 266
Administration of the Law 228
The Victim 269
Detailed Contents
The Due Process of Law 270
The Search 270
The Arrest 272
The Arraignment 272
The Grand Jury and Pretrial Activity 274
The Trial 275
The Post-Trial Proceedings 277
The Special Case of Juveniles 278
Rehabilitation and Punishment 278
Felony Punishment 278
Councils of Governments 309
Councils of Governments (COGs) 309
Applying What You Have Learned about
Local Government 309
A View from Inside County Government
by Veronica Escobar 310
CHAPTER 12
Public Policy in Texas 314
Revenues 315
Misdemeanor Punishment 279
Taxation 316
Evaluating Punishment and Rehabilitation
Policies 280
The Politics of Taxation 317
Sizing Up the Death Penalty
Debate 282
Applying What You Have Learned about
Law and Due Process 283
Marijuana Policy Reform in Texas
by Phillip Martin 284
Other Revenues 323
State Spending 325
The Appropriations Process 325
The Politics of State Spending 325
Education 326
Elementary and Secondary Schools 326
The Politics of Public Education 329
CHAPTER 11
Local Government 288
Municipalities 289
Higher Education 333
The Politics of Higher Education 334
Health and Human Services 338
Health Programs 338
General Law and Home Rule Cities 290
Income Support Programs 342
Forms of Municipal Government 291
The Politics of Welfare and Income
Redistribution 343
Municipal Election Systems 294
Revenue Sources and Limitations 296
Municipalities: Issues, Trends, and
Controversies 298
Counties 301
Functions of Counties 302
Counties: Issues, Trends, and
Controversies 304
Special District Governments 306
Reasons for Creating Special District
Governments 307
Special Districts: Issues, Trends, and
Controversies 308
Transportation 344
Highway Programs 345
The Politics of Transportation 345
Applying What You Have Learned about
Public Policy Issues 347
The Practical Politics of Texas’s Budget
by Eva DeLuna Castro 348
Notes 353
Glossary 363
Index 371
Detailed Contents
ix
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State Learning Outcomes
Texas Politics Today helps you meet the State Learning Outcomes for GOVT2306:
1. Explain the origin and development of the Texas
constitution.
2. Demonstrate an understanding of state and local
political systems and their relationship with the
federal government.
3. Describe separation of powers and checks and
balances in both theory and practice in Texas.
4. Demonstrate knowledge of the legislative, executive,
and judicial branches of Texas government.
5. Evaluate the role of public opinion, interest groups,
and political parties in Texas.
6. Analyze the state and local election process.
7. Describe the rights and responsibilities of citizens.
8. Analyze issues, policies, and political culture of Texas.
Chapter
GOVT 2306 State Learning Outcomes (SLO)
1:
SLO 8 Analyze issues, policies, and political culture of Texas.
Texas Culture
and Diversity
SLO 7 Describe the rights and responsibilities of citizens.
SLO 5 Evaluate the role of public opinion, interest groups, and political parties in Texas.
2:
Texas in the
Federal System
SLO 2 Demonstrate an understanding of state and local political systems and their relationship
with the federal government.
SLO 7 Describe the rights and responsibilities of citizens.
3:
The Texas
Constitution
in Perspective
SLO 1 Explain the origin and development of the Texas constitution.
SLO 3 Describe separation of powers and checks and balances in both theory and practice
in Texas.
SLO 7 Describe the rights and responsibilities of citizens.
4:
Voting and
Elections
SLO 6
Analyze the state and local election process.
SLO 7
Describe the rights and responsibilities of citizens.
5:
Political Parties
SLO 5
Evaluate the role of public opinion, interest groups, and political parties in Texas.
6:
Interest Groups
SLO 5
Evaluate the role of public opinion, interest groups, and political parties in Texas.
7:
The Legislature
SLO 4
Demonstrate knowledge of the legislative, executive, and judicial branches of Texas
government.
8:
The Executive
SLO 4
Demonstrate knowledge of the legislative, executive, and judicial branches of Texas
government.
9:
The Judiciary
SLO 4
Demonstrate knowledge of the legislative, executive, and judicial branches of Texas
government.
10: Law and Due
Process
SLO 7
Describe the rights and responsibilities of citizens.
SLO 4
Demonstrate knowledge of the legislative, executive, and judicial branches of Texas
government.
SLO 8
Analyze issues, policies, and political culture of Texas.
SLO 2
Demonstrate an understanding of state and local political systems and their relationship
with the federal government.
SLO 6
Analyze the state and local election process.
SLO 8
Analyze issues, policies, and political culture of Texas.
SLO 8
Analyze issues, policies, and political culture of Texas.
11: Local
Government
12: Public Policy
xi
Letter to Instructors
Dear Texas Government Instructors:
You may be familiar with previous editions of Texas Politics Today, as it has served as the standard text for the introductory Texas government course for many years. As in the past, we have
focused exclusively on state learning outcomes and core objectives. Each chapter learning
objective is targeted to help students achieve one or more of these learning outcomes, and
we have explicitly organized each chapter to help students use higher-order thinking to master
these objectives. We link each major chapter heading to one of the chapter objectives and
recap how the student should achieve those objectives in both the new chapter summaries and
review questions.
We have put together a strategy for meeting core objectives—each photo, figure, screenshot, boxed feature, essay, and project-centered Get Active feature prompts students to
engage in critical thinking, develop communication skills, evaluate social responsibility, and
reflect on their own sense of personal responsibility. Each of these exercises is designated by
icons throughout the text:
★ CTQ
Critical Thinking Questions
★ CSQ
Communications Skills Questions
★ SRQ
Social Responsibility Questions
★ PRQ
Personal Responsibility Questions
New to This Edition
• Chapters about elections, parties, and interest groups focus on the ideals of democracy and
challenge students to evaluate whether these ideals are realized in practice.
• A streamlined chapter about the Texas Legislature invites students to evaluate the role
legislators play in representing Texans inside and outside of the State Capitol.
• We have provided expanded coverage of ideology and social policies related to marijuana,
abortion, immigration, and firearms, among others.
• We have included expanded coverage of tea party politics and Republican Party factionalism
as well as the latest 2016 election data throughout.
• Chapters 1, 4, 5, 6, 7, 9, and 11 feature expanded coverage of the effects of the state’s
demographic changes and the rising importance of Latinos in the future of Texas politics.
• Enhanced visuals include new intuitive graphics to illustrate federalism, ballot organization,
political party structures, interest group tactics, the plural executive system, the governor’s
appointive powers, and the forms of municipal government. New easy-to-follow processoriented charts take students step by step through the dynamics of the constitutional
amendment, legislative, electoral, and criminal justice processes.
• The role of social and digital media in Texas politics is discussed and illustrated in every
chapter throughout the text.
• We have called upon our resources among a wide range of officeholders and political
activists to write exclusive new Politics in Practice features. These features conclude each
chapter with a specific and fully developed exercise to close the gap between the theoretical
xii
themes and the actual practice of Texas politics; they put a face on the political system
and give students a glimpse of how it operates from an insider’s viewpoint. Because our
essayists are political practitioners who often view their role in the political system from a
policy perspective, we have balanced the liberal and conservative viewpoints and developed
critical thinking questions to prompt students to probe political and policy alternatives.
We have included essays from the governor and his staff, legislators, lobbyists, analysts,
campaign consultants, political activists, and local officials.
• Updated and targeted Texas Insiders and How Does Texas Compare boxes are visually
distinct and provide the reader with an uninterrupted flow through the text.
• Each chapter ends with new Think Critically and Get Active projects that support purposedriven activities and introspection to close the gap between theory and practice in the state
and local political systems.
• Pedagogy links to targeted objectives throughout the chapter and delivers to students a
cohesive learning experience.
MindTap: Your Course Stimulus Package
For the instructor, MindTap is here to simplify your workload, organize and immediately grade
your students’ assignments, and allow you to customize your course as you see fit. Through
deep-seated integration with your Learning Management System, grades are easily exported
and analytics are pulled with just the click of a button. MindTap provides you with a platform to
easily add in current events videos and RSS feeds from national or local news sources. Looking
to include more currency in the course? Add in our KnowNow American Government Blog link
for weekly updated news coverage and pedagogy. We hope these compelling new features will
benefit your students as they experience Texas politics today. Please contact us personally to
let us know how this text works for you.
Sincerely,
Mark P. Jones: mpjones@rice.edu
William E. Maxwell: willmaxwell@att.net
Ernest Crain: ernestcrain@hotmail.com
Morhea Lynn Davis: salas15@epcc.edu
Christopher Wlezien: wlezien@austin.utexas.edu
Elizabeth N. Flores: eflores@delmar.edu
Letter to Instructors
xiii
Letter to Our Students
Dear Student:
Americans in general, and perhaps Texans more than most, are apathetic and disillusioned
about politics. Government seems so big, so remote, so baffling that many people have a sense
of powerlessness. Now you have an opportunity to do something about this. Texas Politics
Today explores Texas government, its background, the rules of the political game, and the
political players who make the most important decisions in Texas. The text plainly explains
public policy, why it is made, and who benefits from it. The book shows you how to think about
yourself in the political universe, how to explore your own political values and ethics, and how
to make a difference.
However, we know that you probably did not enroll in this course to achieve some kind of
altruistic or idealistic goal, but to get credit for a course required for your degree plan. And
we know that most of you are not political science majors. So we have written this book to be
a reader-friendly guide to passing your tests and a hassle-free tool for learning about Texas
government and politics.
Here are some tips on how you can exploit student-centered learning aids to help you make
the grade:
• Target your focus on the learning objectives that open each chapter. Each chapter is
organized around them, and your instructor will use them to track your progress in the
course. Bulleted chapter summaries give you a recap of how the chapter handles these
objectives, and review questions help you break the larger chapter objectives into
manageable themes that you should understand as you prepare for exams.
• Zero in on the key terms defined in the margins and listed at the end of each chapter. These
are the basic concepts that you need to use to understand Texas politics today.
• Go behind the scenes with the Texas Insiders features to see who influences policy making
in Texas. These features put a face on the most powerful Texans and help you close the gap
between theory and practice in Texas politics.
• Put Texas in perspective with the How Does Texas Compare? features. These features invite
you to engage in critical thinking and to debate the pros and cons of the distinct political
institutions and public policies in force across the 50 states.
• View Texas politics from the inside with the Politics in Practice features, and compare the
theory and reality of the state political system.
• Link to the websites in the Think Critically and Get Active! features to explore current
issues, evaluate data, and draw your own conclusions about the Texas political scene.
• Take advantage of carefully written photo, figure, and table captions that point you to major
takeaways from the visuals. These visuals provide you with critical analysis questions to help
you get started thinking about Texas politics.
• Use the digital media highlights to become an active part of the Texas political scene and
help define the state’s political future.
The Benefits of Using MindTap as a Student
For the student, the benefits of using MindTap with this book are endless. With automatically graded practice quizzes and activities, an easily navigated learning path, and an interactive ebook, you will be able to test yourself inside and outside of the classroom with ease.
The accessibility of current events coupled with interactive media makes the content fun and
xiv
engaging. On your computer, phone, or tablet, MindTap is there when you need it, giving you
easy access to flashcards, quizzes, readings, and assignments.
You are a political animal—human beings are political by their very nature. You and other
intelligent, well-meaning Texans may strongly disagree about public policies, and Texas Politics
Today is your invitation to join the dynamic conversation about politics in the Lone Star State.
We hope that this book’s fact-based discussion of recent high-profile, and often controversial,
issues will engage your interest and that its explanation of the ongoing principles of Texas politics will help you understand the role you can play in the Texas political system.
Sincerely,
Mark P. Jones: mpjones@rice.edu
William E. Maxwell: willmaxwell@att.net
Ernest Crain: ernestcrain@hotmail.com
Morhea Lynn Davis: lsalas15@epcc.edu
Christopher Wlezien: wlezien@austin.utexas.edu
Elizabeth N. Flores: eflores@delmar.edu
Letter to Our Students
xv
Resources
STUDENTS
Access your Texas Politics Today resources by visiting
www.cengagebrain.com/shop/isbn/9781305952188.
If you purchased MindTap access with your book, click on “Register a Product” and then enter
your access code.
Instructors
Access your Texas Politics Today resources via
www.cengage.com/login.
Log in using your Cengage Learning single sign-on user name and password, or create a new
instructor account by clicking on “New Faculty User” and following the instructions.
Texas Politics Today, 2017–2018 Edition—Text Only
Edition
ISBN: 9781305952188
This copy of the book does not come bundled with MindTap.
MindTap for Texas Politics Today, 2017–2018 Edition
ISBN for Instant Access Code: 9781305952225 | ISBN for Printed Access Card: 9781305952232
MindTap for Texas Politics Today, 2017–2018 Edition is a highly personalized, fully online
learning experience built upon Cengage Learning content and correlating to a core set of
learning outcomes. MindTap guides students through the course curriculum via an innovative
Learning Path Navigator where they will complete reading assignments, challenge themselves
with focus activities, and engage with interactive quizzes. Through a variety of gradable activities, MindTap provides students with opportunities to check themselves for where they need
extra help, as well as allowing faculty to measure and assess student progress. Integration with
programs like YouTube and Google Drive allows instructors to add and remove content of their
choosing with ease, keeping their course current while tracking local and global events through
RSS feeds. The product can be used fully online with its interactive ebook for Texas Politics
Today, 2017–2018 Edition, or in conjunction with the printed text.
Course Reader for MindTap is now available for every political science MindTap through
the MindTap Instructor’s Resource Center. This new feature provides access to Gale’s authoritative library reference content to aid in the development of important supplemental readers
for political science courses. Gale, a part of Cengage Learning, has been providing research
and education resources for libraries for more than 60 years. This new feature capitalizes on
Cengage Learning’s unique ability to bring Gale’s authoritative library content into the classroom. Instructors have the option to choose from thousands of primary and secondary sources,
images, and videos to enhance their course. This capability can replace a separate reader and
conveniently keeps all course materials in one place within a single MindTap. The selections
within Course Reader are curated by experts and designed specifically for introductory courses.
xvi
Instructor Companion Website for Texas Politics Today
ISBN: 9781305952195
This Instructor Companion Website is an all-in-one multimedia online resource for class preparation, presentation, and testing. Accessible through Cengage.com/login with your faculty
account, you will find available for download: book-specific Microsoft ® PowerPoint ® presentations; a Test Bank compatible with multiple learning management systems; an Instructor’s
Manual; Microsoft ® PowerPoint ® Image Slides; and a JPEG Image Library.
The Test Bank, offered in Blackboard, Moodle, Desire2Learn, Canvas, and Angel formats,
contains learning objective–specific multiple-choice and essay questions for each chapter.
Import the Test Bank into your LMS to edit and manage questions, and to create tests.
The Instructor’s Manual contains chapter-specific learning objectives, an outline, key terms
with definitions, and a chapter summary. Additionally, the Instructor’s Manual features a critical thinking question, a lecture launching suggestion, and an in-class activity for each learning
objective.
The Microsoft ® PowerPoint ® presentations are ready-to-use, visual outlines of each chapter.
These presentations are easily customized for your lectures and offered along with chapterspecific Microsoft ® PowerPoint ® Image Slides and JPEG Image Libraries. Access the Instructor
Companion Website at www.cengage.com/login.
Cognero for Texas Politics Today, 2017–2018 Edition
ISBN: 9781305952249
Cengage Learning Testing Powered by Cognero is a flexible, online system that allows you to
author, edit, and manage test bank content from multiple Cengage Learning solutions, create multiple test versions in an instant, and deliver tests from your LMS, your classroom, or
wherever you want. The Test Bank for Texas Politics Today contains learning objective–specific
multiple-choice and essay questions for each chapter.
Resources
xvii
Acknowledgments
We are grateful to our families for their patience and encouragement as we have developed the
manuscript for this book, and we especially appreciate our students and colleagues who have
given us helpful practical advice about how to make the book a more useful tool in teaching
and learning Texas politics. We would like to give special thanks to Denese McArthur of Tarrant
County Community College, who has contributed to the Instructor’s Manual, and Hoyt DeVries
of Lone Star College– Cy-Fair, who authored this edition’s Test Bank.
In addition, we thank the Politics in Practice contributors for this edition.
xviii
Chapter 1
The Face of Latino Immigration
by Ana Hernandez
State Representative, Texas House District 143
Chapter 2
Texas in the Federal System
by Greg Abbott
Governor of Texas
Chapter 3
The Constitutional Right to Education
by Holly McIntush
Attorney & Member of the Fort Bend ISD Group Legal Team
Chapter 4
Everything Is Bigger in Texas, with a Twist of Red
by Luke Macias
Founder of Macias Strategies
Chapter 5
One Face of the Texas Tea Party
by Julie McCarty
President of the NE Tarrant Tea Party
Chapter 6
The Practice of Environmental Lobbying
by Luke Metzger
Director of Environment Texas
Chapter 7
On Being a Legislator: A View from the Inside
by José Rodríguez
State Senator, Texas Senate District 29
Chapter 8
The Texas Executive Branch: Does it run you, or do you run it?
by Drew DeBerry
Director of Budget and Policy for Texas Governor Greg Abbott
Chapter 9
Choosing Judges: My View from the Inside
by Wallace B. Jefferson
Former Chief Justice of the Texas Supreme Court
Chapter 10
Marijuana Policy Reform in Texas
by Phillip Martin
Deputy Director of Progress Texas
Chapter 11
A View from Inside County Government
by Veronica Escobar
El Paso County Judge
Chapter 12
The Practical Politics of Texas’s Budget
by Eva DeLuna Castro
State Budget Analyst, Center for Public Policy Priorities
Reviewers
We would also like to thank the instructors who have contributed their valuable feedback
through reviews of this text:
Jeffrey Hubbard, Victoria College
Bryan Johnson, Tarrant County College
Patrick Moore, Richland College
Dana A. Morales, Lone Star College–Montgomery
Paul Phillips, Navarro College
Robert B. Tritico, Sam Houston State University
Previous edition reviewers:
Mary Barnes-Tilley, Blinn College–Brenham
Sarah Binion, Austin Community College
Larry E. Carter, The University of Texas at Tyler
Neil Coates, Abilene Christian College
Malcolm L. Cross, Tarleton State University
Kevin T. Davis, North Central Texas College
Laura De La Cruz, El Paso Community College
Brian R. Farmer, Amarillo College
Frank J. Garrahan, Austin Community College
Glen David Garrison, Collin County Community College–Spring Creek
Diane Gibson, Tarrant County College, Trinity River Campus
Jack Goodyear, Dallas Baptist University
Alexander Hogan, Lone Star College–CyFair
Floyd Holder, Texas A&M University–Kingsville
Robert Paul Holder, McLennan Community College
Timothy Hoye, Texas Woman’s University
Casey Hubble, McLennan Community College
Woojin Kang, Angelo State University
Denese McArthur, Tarrant County College
Eric Miller, Blinn College–Bryan
Lisa Perez-Nichols, Austin Community College
Herman Prager, Ph.D., Austin Community College
John David Rausch, Jr., West Texas A&M University
David Smith, Texas A&M University–Corpus Christi
Jessika Stokley, Austin Community College
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About the Authors
Mark P. Jones is the James A. Baker III Institute for Public Policy’s Fellow in Political Science, the
Joseph D. Jamail Chair in Latin American Studies, and a professor in the Department of Political
Science at Rice University. His articles have appeared in publications such as the American
Journal of Political Science, the Journal of Politics, Legislative Studies Quarterly, Texas Monthly,
The Hill, and the Texas Tribune. Jones is among the most quoted commentators on Texas politics in the state and national media, and his research on the Texas Legislature and on public
opinion and elections in Texas is widely cited by media outlets and political campaigns. Jones
received his B.A. from Tulane University and his Ph.D. from the University of Michigan.
William Earl Maxwell is a professor emeritus at San Antonio College, where he taught courses
in United States and Texas Government. San Antonio College is a teaching institution, and
Maxwell focused on innovative teaching techniques and improving the learning environment
for students. As a part of that effort, Maxwell co-authored Understanding Texas Politics in 1975,
his first text on Texas government. In the years that followed, he co-authored Politics in Texas
(1975), Texas Politics Today (1978–2015), The Challenge of Texas Politics: Text with Readings
(1980), and American Government and Politics Today: Texas Edition (2006–2012). Maxwell’s
hometown is Lovelady in East Texas. He completed his undergraduate and graduate studies at
Sam Houston State University, specializing in comparative government.
Ernest Crain did his graduate work at the University of Texas at Austin, spent 35 years teaching Texas government at San Antonio College, and now lives in Montgomery County, Texas.
Crain has co-authored Understanding Texas Politics, Politics in Texas: An Introduction to Texas
Politics, The Challenge of Texas Politics: Text with Readings, American Government and Politics
Today: Texas Edition, and Texas Politics Today. His special areas of interest include party competition, comparative state politics, and Texas public policy.
Morhea Lynn Davis is professor of government at El Paso Community College, where she has
served as blackboard trainer and mentor, faculty senator, government discipline coordinator,
and a member of numerous faculty committees. Davis has a Master of Arts degree from the
University of Texas at El Paso, with a major in both organizational behavior and political science. She is a very active community volunteer and grant writer, and has consulted for and participated in many political campaigns. Her published articles range in topics from the current
political environment to the viability of primaries and caucuses in today’s election processes.
Christopher Wlezien is Hogg Professor of Government at the University of Texas at Austin. He
previously taught at Oxford University, the University of Houston, and Temple University, after
receiving his Ph.D. from the University of Iowa in 1989. Over the years, Wlezien has published
widely on elections, public opinion, and public policy; his books include Degrees of Democracy,
Who Gets Represented?, and The Timeline of Presidential Elections. He has founded a journal,
served on numerous editorial boards, established different institutes, advised governments
and other organizations, held visiting positions at many universities around the world, received
various research grants, and won a number of awards for his research and teaching.
Elizabeth N. Flores is professor of political science at Del Mar College. She teaches courses
on national government, Texas government, and Mexican-American politics, and serves as program coordinator for the Mexican-American Studies Program. Flores earned a Master of Arts
degree in political science at the University of Michigan and a Bachelor of Arts degree in political science (magna cum laude) at St. Mary’s University. Her awards include the 2014 League of
United Latin American Citizens (LULAC) Council Educator of the Year Award, the 2013 Del Mar
College Dr. Aileen Creighton Award for Teaching Excellence, and a 1998 Excellence Award
from the National Institute for Staff and Organizational Development (NISOD).
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Prologue:
Texas’s Political Roots
The English-Scots-Irish culture, as it evolved in its migration through the southern United States,
played an essential part in the Texas Revolution. Sam Houston, Davy Crockett, Jim Bowie, and
others were of Scotch-Irish descent, and these immigrants led the Anglo-American movement
west and had a major impact on the development of modern mid-American culture.
The successful end to the Texas Revolution in 1836 attracted more immigrants from the
southern United States. Subsequently, the Anglo-Texan population grew dramatically and
became the largest Texas ethnic group. As a result, Anglo Texans controlled the politics and
economy and Protestantism became the dominant religion.
The Anglo concept of Manifest Destiny was not kind to Latinos and Native Americans. Native
Americans were killed or driven into the Indian Territory (located in present-day Oklahoma), and
many Latino families were forced from their property. Even Latino heroes of the Texas Revolution
with names like De León, Navarro, Seguín, and Zavala were not spared in the onslaught.1
Politics and Government: The Early Years2
The Republic of Texas had no political parties. Political conflict revolved around pro-Houston and anti-Houston policies. Sam Houston, the hero of the battle of San Jacinto, advocated
peaceful relations with the eastern Native Americans and U.S. statehood for Texas. The antiHouston forces, led by Mirabeau B. Lamar, believed that Native American and Anglo-American
cultures could not coexist. Lamar envisioned Texas as a nation extending from the Sabine River
to the Pacific.
JOINING THE UNION
Texas voters approved annexation to the United States in 1836, almost immediately after Texas
achieved independence from Mexico. However, because owning human property was legal in
the republic and would continue to be legal once it became a state, the annexation of Texas
would upset the tenuous balance in the U.S. Senate between proslavery and antislavery senators. This and other political issues, primarily relating to slavery, postponed Texas’s annexation
until December 29, 1845, when it officially became the 28th state.
Several Texas articles of annexation were unique. Texas retained ownership of its public
lands because the U.S. Congress refused to accept their conveyance in exchange for payment
of the republic’s $10 million debt. Although millions of acres were ultimately given away or sold,
those remaining continue to produce hundreds of millions of dollars in state revenue, largely
in royalties from the production of oil and natural gas. These royalties and other public land
revenue primarily benefit the Permanent University Fund and the Permanent School Fund. The
annexation articles also granted Texas the privilege of “creating … new states, of convenient
size, not exceeding four in number, in addition to said State of Texas.”3
EARLY STATEHOOD AND SECESSION: 1846–1864
The politics of early statehood soon replicated the conflict over slavery that dominated politics in the United States. Senator Sam Houston, a strong Unionist alarmed by the support for
secession in Texas, resigned his seat in the U.S. Senate in 1857 to run for governor. He was
defeated because secessionist forces controlled the dominant Democratic Party. He was, however, elected governor two years later.
The election of Abraham Lincoln as president of the United States in 1860 triggered a Texas
backlash. A secessionist convention was called and it voted to secede from the Union. Governor
xxi
Houston used his considerable political skills in a vain attempt to keep Texas in the Union. At
first, Houston declared the convention illegal, but the Texas Legislature later upheld it as legitimate. Although only about 5 percent of white Texans owned slaves, the electorate ratified the
actions of the convention by an overwhelming 76 percent.4
Houston continued to fight what he considered Texans’ determination to self-destruct.
Although he reluctantly accepted the vote to secede, Houston tried to convince secessionist
leaders to return to republic status rather than join the newly formed Confederate States of
America—a plan that might have spared Texans the tragedy of the Civil War. Texas’s secession convention rejected this political maneuver and petitioned for membership in the new
Confederacy. Houston refused to accept the actions of the convention, which summarily
declared the office of governor vacant and ordered the lieutenant governor to assume the
position. Texas was then admitted to the Confederacy.
POST–CIVIL WAR TEXAS: 1865–1885
The defeat of the Confederacy resulted in relative anarchy in Texas until it was occupied by
federal troops beginning on June 19, 1865, a date henceforth celebrated as Juneteenth.
Texas and other southern states resisted civil rights and equality for freed slaves, resulting in radical Republicans gaining control of the U.S. Congress. Congress enacted punitive
legislation prohibiting former Confederate soldiers and officials from voting and holding
public office.
Texas government was controlled by the U.S. Army from 1865 through 1869, but the army’s
rule ended after the new state constitution was adopted in 1869. African Americans were
granted the right to vote, but it was denied to former Confederate officials and military. In the
election to reestablish civilian government, Republican E. J. Davis was elected governor and
Republicans dominated the new legislature. Texas was then readmitted to the United States,
military occupation ended, and civilian authority assumed control of the state. Unlike either
previous or subsequent constitutions, the 1869 Constitution centralized political power in the
office of the governor. During the Davis administration, Texas began a statewide public school
system and created a state police force.
Republican domination of Texas politics was a new and unwelcome world for most Anglo
Texans, and trouble intensified when the legislature increased taxes to pay for Governor Davis’s
reforms. Because Texas’s tax base was dependent on property taxes, eliminating human property from the tax rolls and the decline in value of real property placed severe stress on the
public coffers. Consequently, state debt increased dramatically. Former Confederates were
enfranchised in 1873, precipitating a strong anti-Republican reaction from the electorate, and
Democrat Richard Coke was elected governor in 1875.
Texas officials immediately began to remove the vestiges of radical Republicanism. The legislature authorized a convention to write a new constitution. The convention delegates were
mostly Democratic, Anglo, and representative of agrarian interests. The new constitution
decentralized the state government, limited the flexibility of elected officials, and placed public education under local control. The constitution was ratified by voters in 1876 and an oftenamended version is still in use today.
POLITICS AND GOVERNMENT: 1886–1945
Many reform measures were enacted and enforced in Texas in the 1880s, especially laws limiting corporate power. Attorney General James S. Hogg vigorously enforced new laws curtailing
abuses by insurance companies, railroads, and other corporate interests.
GOVERNOR HOGG: 1891–1895
Attorney General James Hogg was an important reformer in Texas politics and developed a
reputation as the champion of common people. Railroad interests dominated most western
states’ governments, prompting Hogg to run for governor with the objective of regulating
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Prologue: Texas’s Political Roots
railroads. Although he faced strong opposition from powerful corporate interests that viewed
him as a threat, Hogg won the nomination in the 1890 Democratic State Convention.
A commission to regulate railroads was authorized in the subsequent election. The Railroad
Commission was eventually given the power to regulate trucks and other vehicles used in Texas
commerce and the production and transportation of oil and natural gas.
Politics in the early 1900s distinguished Texas as one of the most progressive states in the
nation. Texas pioneered the regulation of monopolies, railroads, insurance companies, and
child labor. It reformed its prisons and tax system, and in 1905, replaced political party nominating conventions with direct party primaries.
FARMER JIM: 1914–1918
James E. Ferguson entered the Texas political scene in 1914 and was a controversial and powerful force in Texas politics for the next 20 years. Ferguson owned varied business interests and
was the president of the Temple State Bank. Although sensitive to the interests of the business
community, Ferguson called himself “Farmer Jim” to emphasize his rural background.
The legislature was unusually receptive to Ferguson’s programs, which generally restricted
the economic and political power of large corporations and tried to protect the common people. It also enacted legislation designed to assist tenant farmers, improve public education and
colleges, and reform state courts.
The legislature also established a highway commission to manage state highway construction. Texas’s county governments had been given the responsibility of constructing state roads
within their jurisdictions. The result was that road quality and consistency varied widely between
counties. The agency’s authorization to construct and maintain Texas’s intrastate roadways
standardized the system and facilitated automobile travel.
Rumors of financial irregularities in Ferguson’s administration gained credibility, but his
declaring war on The University of Texas would prove fatal. Ferguson vetoed the entire appropriation for the university, apparently because the board of regents refused to remove certain
faculty members whom the governor found objectionable. This step alienated politically powerful graduates who demanded that he be removed from office. Farmer Jim was impeached,
convicted, removed, and barred from holding public office in Texas.
WORLD WAR I, THE TWENTIES, AND THE RETURN
OF FARMER JIM: 1919–1928
Texas saw a boom during World War I. Its favorable climate and the Zimmerman Note, in which
Germany allegedly urged Mexico to invade Texas, prompted the national government to station
troops in the state. Texas became and continues to be an important training area for the military.
Crime control, education, and the Ku Klux Klan, a white supremacist organization, were the
major issues of the period. Progressive measures enacted during this period included free textbooks for public schools and the beginning of the state park system. The 1920 legislature also
ratified the Eighteenth Amendment to the U.S. Constitution establishing national Prohibition.
The strongest anti-Klan candidate in 1924 was Miriam A. “Ma” Ferguson, wife of the
impeached Farmer Jim. She ran successfully on a platform of “Two Governors for the Price of
One,” becoming the first female governor of Texas. Detractors alleged that she was only a figurehead and that Farmer Jim was the real governor. Nonetheless, Ma’s election indicated that
Texas voters had forgiven Farmer Jim for his misbehavior. She was successful in getting legislation passed that prohibited wearing a mask in public, which resulted in the end of the Klan as
an effective political force.
National politics became an issue in Texas politics in 1928. Al Smith, the Democratic nominee for president, was a Roman Catholic, a “wet,” and a big-city politician. Herbert Hoover, the
Republican nominee, was a Protestant, a “dry,” and an international humanitarian. Hoover won
the electoral votes from Texas—the first Republican ever to do so.
Prologue: Texas’s Political Roots
xxiii
THE GREAT DEPRESSION: 1929–1939
The stock market crashed in 1929 and Texas, along with the entire nation, was economically
crushed. Prices dropped, farm products could not be sold, mortgages and taxes went unpaid,
jobs evaporated, and businesses and bank accounts were wiped out.
Promising to cut government spending, Ma Ferguson was once again elected governor in
1932 becoming the first Texas governor to serve nonconsecutive terms. The 1933 ratification of
the Twenty-first Amendment to the U.S. Constitution brought an end to nationwide Prohibition.
Prohibition ended in Texas two years later with the adoption of local-option elections, although
selling liquor by the drink was still forbidden statewide.
Politics and Government after
World War II: 1948–Today
The 1948 senatorial campaign attracted several qualified candidates. The runoff in the
Democratic primary pitted former governor Coke Stevenson against U.S. Congressman Lyndon
B. Johnson.
The election was the closest statewide race in Texas history. At first, the election bureau
gave the unofficial nomination to Stevenson, but the revised returns favored Johnson. The final
official election results gave Johnson the nomination by a plurality of 87 votes. Both candidates
charged election fraud.
Box 13 in Jim Wells County, one of several machine-controlled counties dominated by political boss George Parr (the Duke of Duval), was particularly important in the new figures. This
box revised Johnson’s vote upward by 202 votes and Stevenson’s upward by only one. Box 13
was also late in reporting, thereby tainting Johnson’s victory. About the election, historian T. R.
Fehrenbach wrote, “There was probably no injustice involved. Johnson men had not defrauded
Stevenson, but successfully outfrauded him.”5
THE 1950s AND 1960s: LBJ, THE SHIVERCRATS, AND THE SEEDS
OF A REPUBLICAN TEXAS
Allan Shivers became governor in 1949, and in 1952 the national election captured the interests
of Texans. Harry Truman had succeeded to the presidency in 1945 and was reelected in 1948.
Conservative Texas Democrats became disillusioned with the New Deal and Fair Deal policies
of the Roosevelt–Truman era and wanted change.
Another major concern for Texans was the tidelands issue. With the discovery of oil in the
Gulf of Mexico, a jurisdictional conflict arose between the government of the United States and
the governments of the coastal states. Texas claimed three leagues (using Spanish units of measure, equal to about 10 miles) as its jurisdictional boundary; the U.S. government claimed Texas
had rights to only three miles. At stake were hundreds of millions of dollars in royalty revenue.
Both Governor Shivers and Attorney General Price Daniel, who was campaigning for the
U.S. Senate, attacked the Truman administration as being corrupt, soft on communism, eroding
the rights of states, and being outright thieves in attempting to steal the tidelands oil from the
schoolchildren of Texas. State control of the revenue would direct much of the oil income to the
Permanent School Fund and result in a lower tax burden for Texans. The Democratic nominee
for president, Adlai Stevenson of Illinois, disagreed with the Texas position.
The Republicans nominated Dwight Eisenhower, a World War II hero who was sympathetic
to the Texas position on the tidelands. Eisenhower was born in Texas (but reared in Kansas),
and his supporters used the campaign slogan “Texans for a Texan.” The presidential campaign
solidified a split in the Texas Democratic Party that lasted for 40 years. The conservative faction,
led by Shivers and Daniel, advocated splitting the ticket, or voting for Eisenhower for president
and Texas Democrats for state offices. Adherents to this maneuver were called Shivercrats. The
liberal faction, or Loyalist Democrats of Texas, led by Judge Ralph “Raff” Yarborough, campaigned for a straight Democratic ticket.
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Prologue: Texas’s Political Roots
Texas voted for Eisenhower, and the tidelands dispute was eventually settled in its favor.
Shivers was reelected governor and Daniel won the Senate seat. Shivers, Daniel, and other
Democratic candidates for statewide offices had also been nominated by the Texas Republican
Party. Running as Democrats, these candidates defeated themselves in the general election.
Lyndon B. Johnson, majority leader of the U.S. Senate and one of the most powerful men in
Washington, lost his bid for the Democratic presidential nomination to John F. Kennedy in 1960.
He then accepted the nomination for vice president. By the grace of the Texas Legislature,
Johnson was on the general election ballot as both the vice-presidential and senatorial nominee. When the Democratic presidential ticket was successful, he was elected to both positions, and a special election was held to fill the vacated Senate seat. In the special election,
Republican John Tower was elected and became the first Republican since Reconstruction to
serve as a U.S. senator from Texas.
THE 1970s AND 1980s: REPUBLICAN GAINS AND EDUCATION REFORMS
In 1979, William P. Clements became the first Republican governor of Texas since E. J. Davis
was defeated in 1874. The election of a Republican governor did not affect legislative-executive
relations and had limited impact on public policy because Clements received strong political
support from conservative Democrats.
Democratic Attorney General Mark White defeated incumbent governor Bill Clements in
1982. Teachers overwhelmingly supported White, who promised salary increases and expressed
support for education. The first comprehensive educational reform since 1949 became law in
1984. House Bill 72 increased teacher salaries, made school district revenue somewhat more
equitable, and raised standards for both students and teachers.
In 1986, voter discontent with education reform, a sour economy, and decreased state revenue were enough to return Republican Bill Clements to the governor’s office. In 1988, three
Republicans were elected to the Texas Supreme Court and one to the Railroad Commission—
the first Republicans elected to statewide office (other than governor or U.S. senator) since
Reconstruction.
In 1989, the Texas Supreme Court unanimously upheld an Austin district court’s ruling in
Edgewood v. Kirby 6 that the state’s educational funding system violated the Texas constitutional requirement of “an efficient system” for the “general diffusion of knowledge.” After
several reform laws were also declared unconstitutional, the legislature enacted a complex law
that kept the property tax as the basic source for school funding but required wealthier school
districts to share their wealth with poorer districts. Critics called the school finance formula a
“Robin Hood” plan.
THE 1990s: TEXAS ELECTS A WOMAN GOVERNOR AND
BECOMES A TWO-PARTY STATE
In 1990, Texans elected Ann Richards as their first female governor since Miriam “Ma” Ferguson.
Through her appointive powers, she opened the doors of state government to unprecedented
numbers of women, Latinos, and African Americans. Dan Morales was the first Latino elected
to statewide office in 1990, and Austin voters elected the first openly gay state legislator, Glen
Maxey, in 1991. Texas elected Kay Bailey Hutchison as its first female U.S. senator in 1992. She
joined fellow Republican Phil Gramm as they became the first two Republicans to hold U.S.
Senate seats concurrently since 1874.
When the smoke, mud, and sound bites of the 1994 general election settled, Texas had
truly become a two-party state. With the election of Governor George W. Bush, Republicans
held the governor’s office and both U.S. Senate seats for the first time since Reconstruction.
Republicans won a majority in the Texas Senate in 1996, and voters ratified an amendment to
the Texas Constitution that allowed them to use their home equity (the current market value of
a home minus the outstanding mortgage debt) as collateral for a loan.
The 1998 general election bolstered Republican political dominance as the party won every
statewide elective office, positioning Governor George W. Bush as the frontrunner for the 2000
Prologue: Texas’s Political Roots
xxv
Republican nomination for president. Legislators deregulated the electricity market and the
state’s city annexation law was made more restrictive. Public school teachers received a pay
raise but were still paid below the national average. And Texas adopted a program to provide
basic health insurance to some of the state’s children who lacked health coverage, although
more than 20 percent of Texas children remained uninsured.
THE 2000s: TEXAS BECOMES A REPUBLICAN STATE,
CONTROVERSY AND CONFLICT
The 2001 legislature enacted a hate crimes law that strengthened penalties for crimes motivated
by a victim’s race, religion, color, gender, disability, sexual orientation, age, or national origin.
The legislature also established partial funding for health insurance for public school employees
and made it easier for poor children to apply for health-care coverage under Medicaid.
Republicans swept statewide offices and both chambers of the legislature in the 2002
elections, restoring one-party government in the state, now red instead of blue. A projected
$10 billion budget deficit created an uncomfortable environment for Republicans. Politically
and ideologically opposed to new taxes and state-provided social services, the legislature
and the governor chose to reduce funding for most state programs; expenditures for education, health care, children’s health insurance, and social services for the needy were sharply
reduced.
Meanwhile, attempts to effectively close tax loopholes failed. For example, businesses and
professions of all sizes continued to organize as partnerships to avoid the state corporate franchise tax. The legislature placed limits on pain-and-suffering jury awards for injuries caused by
physician malpractice and hospital incompetence and made it more difficult to sue the makers
of unsafe, defective products.
The legislature’s social agenda was ambitious. It outlawed civil unions for same-sex couples
and barred recognition of such unions from other states. It imposed a 24-hour waiting period
before a woman could have an abortion.
Although the districts for electing U.S. representatives in Texas had been redrawn by a
panel of one Democratic and two Republican federal judges following the 2000 Census, Texas
Congressman and U.S. House Majority Leader Tom DeLay was unhappy that more Republicans
were not elected to Congress. Governor Rick Perry agreed and called a special session in
the summer of 2003 to redraw districts once again to increase Republican representation.
Democrats argued that the districts had already been established by the courts and that Perry
and DeLay only wanted to increase the number of Republican officeholders. The legislature
adopted the Republican proposal and the U.S. Supreme Court affirmed that states could redistrict more than once each decade and rejected the argument that the redistricting was either
illegal or partisan.
The Texas government in 2007 waged almost continuous battle with itself. Conflict between
the House and the speaker, the Senate and the lieutenant governor, the Senate and the House,
and the legislature and the governor marked the session. Legislators did restore eligibility of
some needy children for the Children’s Health Insurance Program (CHIP).
The 2009 legislature seemed almost placid after the unprecedented House revolt against
Speaker Tom Craddick and election of fellow Republican Joe Straus as the new speaker.
However, consideration of a contentious voter identification bill caused conflict in the last days
of the session and resulted in a parliamentary shutdown. The House adjourned without resolution of the voter identification bill and postponed other important matters to be resolved by a
special session.
THE 2010s: CONSERVATIVE POLITICS, POLICIES, AND LITIGATION
In 2010, much of the state’s political attention was focused on disputes about Texas’s acceptance of federal funds. Texas accepted federal stimulus money to help balance the state’s budget but turned down more than $500 million in federal stimulus money for unemployed Texans.
The state declined to apply for up to $700 million in federal grant money linked to “Race to the
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Prologue: Texas’s Political Roots
Top,” a program to improve education quality and results. Governor Perry believed the money
would result in a federal takeover of Texas schools. Texas also became one of seven states
to reject the National Governors Association effort to establish national curriculum standards
called the “Common Core.”
Governor Perry failed to get the Republican nomination for president in 2012 but continued
to make national news arguing for his agenda of low taxes, limited business regulation, and
opposition to the Affordable Care Act. Using taxpayer money from the Texas Enterprise Fund,
he was able to persuade several businesses to relocate to Texas. Among his most notable successes, the governor helped persuade Toyota to move its headquarters and high-paying jobs
from California and Kentucky to the Dallas-Fort Worth Metroplex.
In recent years, the Republican political leadership adopted an ambitious conservative political and social agenda. Outnumbered in the legislative and executive branches, liberal and
Democratic strategists turned to the courts to battle against these policies. For example, opponents challenged the state’s legislative and congressional districts created in 2011 as being
gerrymandered to dilute minority votes and to favor Republican candidates. The courts upheld
the legislative districting map with only minor changes.
Meanwhile the state legislature adopted a strict voter photo ID law in 2011 requiring voters
to present specific forms of identification as a condition for voting. Opponents charged that
these laws were designed to discourage voting by young, minority, and elderly citizens who
were less likely to have these forms of identification. Ultimately, federal courts ruled the Voter
ID laws was discriminatory and allowed voters to cast their ballots in the 2016 election if they
could not reasonably obtain the mandated types of ID and signed an affidavit of citizenship and
presented proof of residency.
Although in 2013 the U.S. Supreme Court struck down provisions of the Voting Rights Act
(VRA) of 1965 that required states, like Texas, that have a history of racial discrimination to get
preclearance of new election laws from the U.S. Department of Justice, challengers can still
show that particular elections laws are racially discriminatory and, therefore, a violation of the
U.S. Constitution or federal law. Challenges to new Texas election laws, such as voter ID and
redistricting, are likely to continue for the foreseeable future.
In 2013 the Texas Legislature also passed regulations that required abortion clinics to meet
the hospital-like standards of ambulatory surgical centers. Opponents argued that these
regulations compromised a woman’s constitutional right to obtain an abortion. Despite the
well-publicized filibuster by former state senator Wendy Davis, the law was adopted. Court
challenges to the law immediately followed, with the U.S. Supreme Court ruling in 2016 that
these (and related) regulations were unconstitutional.
Despite the legal and political turmoil that permeated the political environment, Republicans
continued to dominate state politics after the 2014 elections. Former attorney general Greg
Abbott defeated Democrat Wendy Davis to become the first practicing Roman Catholic elected
as governor, and Texas Republicans firmly embraced tea party politics as the most conservative GOP candidates rolled over “establishment” candidates like Lieutenant Governor David
Dewhurst (in his bid for reelection) and several other centrist Republican politicians.
The 2015 legislative session featured a House and Senate where almost two-thirds of the legislators were Republicans and a plural executive, from Governor Abbott to Land Commissioner
George P. Bush, that remained 100 percent Republican. While the senate veered to the right
with the election of Lieutenant Governor Dan Patrick and the replacement of several veteran
centrist conservative senators by freshman movement conservatives, the GOP’s establishment
wing remained firmly in control of the Texas House under the leadership of Speaker Joe Straus.
The result was a legislative session that featured a series of inter-chamber and intra-GOP battles and negotiations, with the more conservative wing of the GOP getting its way on some
legislation (such as blocking Medicaid expansion under the Affordable Care Act and passing “Campus Carry” legislation) and the more centrist wing of the party getting its way on
some legislation (such as blocking a repeal of the “Texas Dream Act” and passing legislation to
increase funding for transportation infrastructure).
Prologue: Texas’s Political Roots
xxvii
The 2016 election did not change the balance of power in Austin. Republicans continue to
hold substantial majorities in both the House and Senate and Speaker Straus and Lt. Governor
Patrick remain safely ensconced at the helm in their respective chambers. The 2017 legislative
session will take place in a period of relative budget austerity, meaning that any significant
increase in spending is very unlikely given the current balance of power in Austin.
While the Texas Supreme Court did rule in 2016 that the state’s public school funding system
is constitutional, it also signaled that this system was flawed and in need of serious reform.
We can thus expect the Texas Legislature to spend a considerable amount of time and energy
debating public education funding in 2017, but it remains to be seen if major reforms will be
enacted or if, in the end, only minor changes will be made. There is also expected to be a push
by conservatives to place a ban on “sanctuary cities” and an effort by Democrats and centrist
conservatives to expand Medicaid as part of the Affordable Care Act in order to obtain billions
of federal health care dollars and to provide health insurance to over a million Texans who presently do not have it as a result of the state’s decision to not expand Medicaid coverage.
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Prologue: Texas’s Political Roots
Texas Political Culture
and Diversity
12
1
In this chapter, you will see who we are as Texans, what we think, and how our culture and diversity affect our
state’s politics.
Robert Daemmrich Photography Inc/Getty Images
Learning Objectives
LO 1.1 Analyze the relationships among Texas political culture, its politics, and its public policies.
LO 1.2 Differentiate the attributes that describe the major Texas regions.
LO 1.3 Analyze Texans’ political struggles over equal rights and evaluate their success in Texas
politics today and their impact on the state’s political future.
LO 1.4 Apply what you have learned about Texas political culture and diversity.
2
1 Texas Political Culture and Diversity
political culture
The dominant political
values and beliefs of a
people.
A
political culture reflects the political values and beliefs of a people. It explains how people
feel about their government—their expectations of what powers it should have over their
lives, the services it should provide, and their ability to influence its actions. A political culture
is developed by historical experience over generations through agents of socialization such as
family, religion, peer group, and education. It is characterized by the level of ethnic, social, and
religious diversity it tolerates; by the level of citizen participation it allows; by the societal role it
assigns to the state; and by citizens’ perception of their status within the political system.
A people’s political behavior is shaped by the culture that nourished it. The Spanish conquest and settlement of Texas provided the first European influence on Texas culture. Some
elements of the ranchero culture and the Catholic religion continue to this day and are the
enduring Spanish influence on our culture. The immigration of Anglo-Saxon southerners in
the early 1800s brought Texas the plantation and slave-owning culture. This culture became
dominant following the Texas Revolution. Although it was modified to an extent by the Civil
War, it has remained the dominant Texas culture.
However, ethnic/racial diversification and urbanization have gradually eroded the dominance of the traditional southern Anglo culture over time, with this erosion especially notable
over the last 20 to 30 years. During the past three decades Texas has not only become one of
the most diverse multicultural states in the country, it has become one of the most urbanized;
two-thirds of the population now resides in one of four major metropolitan regions (Austin,
Dallas–Fort Worth, Houston, San Antonio), and Texans living in rural areas today account
for only a tenth of the population.
We begin by exploring the state’s dominant political culture and ideology, and how they
influence partisanship and public policy. Then we look at other aspects of the state’s political
culture and examine the subtle variations in the state from one region to another. We then
review the battles for gender, ethnic/racial, and sexual orientation equality and the impact
of these struggles and their outcomes, along with the state’s increasing diversity, on politics
and policy.
Political Culture, Partisanship, and Public Policy
conservative
A political ideology
marked by the belief in
a limited role for government in taxation,
economic regulation,
and providing social
services; conservatives
support traditional
values and lifestyles,
and are cautious in
response to social
change.
LO 1.1 Analyze the relationships among Texas political culture, its politics,
and its public policies.
Texas’s political culture is conservative. Many Texans share a belief in a limited role for
government in taxation, economic regulation, and providing social services; conservatives
support traditional values and lifestyles, and are cautious in response to social change.
Ideology
The Texas brand of conservatism is skeptical of state government involvement in the economy. A majority of Texans favor low taxes, modest state services, and few business regulations. Because they support economic individualism and free-market capitalism, Texans
generally value profit as a healthy incentive to promote economic investment and individual
effort, while they see social class inequality as the inevitable result of free-market capitalism.
For them, an individual’s quality of life is largely a matter of personal responsibility rather
than an issue of public policy.
Some conservatives accept an active role for the government in promoting business. They
are willing to support direct government subsidies and special tax breaks for businesses to
encourage economic growth. They may also support state spending for infrastructure, such
as transportation and education, that sustains commercial and manufacturing activity.
Social conservatives support energetic government activity to enforce what they view as
moral behavior and traditional cultural values. For example, social conservatives, who often
Political Culture, Partisanship, and Public Policy
are evangelical Christians, usually advocate for the use of state power to limit abortion and
drug use.
A distinct minority in Texas, liberals believe in using government to improve the welfare of
individuals; they favor government regulation of the economy, actively support the expansion of
civil rights, and tolerate social change. Liberals believe state government can be used as a positive tool to benefit the population as a whole. Most Texas liberals accept private enterprise as
the state’s basic economic system but believe excesses of unregulated capitalism compromise the
common good. They endorse state policies to abate pollution, increase government investment
in public education and health care, protect workers and consumers, and prevent discrimination
against ethnic/racial minorities and members of the LGBT community, among others.
Liberals often believe that a great deal of social inequality results from institutional and
economic forces that are often beyond a single individual’s control. As a result, they support
the use of government power to balance these forces and to promote a better quality of life
for middle- and lower-income people. For example, liberals argue that it is fair to tax those
with the greatest ability to pay and to provide social services for the community as a whole.
A significant number of Texans have mixed views. On some issues, they take a liberal
position, but on others they have a conservative perspective or no opinion at all. Others have
moderate views: Figure 1.1 shows that 31 percent of Texans say that they are “in the middle”;
that is, their beliefs are between conservative and liberal viewpoints. The “Think Critically
and Get Active!” features in this and later chapters will give you the tools to explore Texans’
political differences in greater depth and to engage with various ideological groups in Texas.
Conservatives and Liberals in Texas Today
Figure 1.1 provides information on the ideological self-identification of Texans overall and
among subgroups of Texans based on their gender, ethnic/racial identity, and generation.
The data are drawn from a series of University of Texas/Texas Tribune statewide polls of
Texas registered voters conducted between October 2011 and February 2016.1 A survey question asked respondents to place themselves on a seven-point ideological scale where 1 was
“extremely liberal,” 4 “in the middle,” and 7 “extremely conservative.” Respondents who
located themselves as a 5, 6, or 7 are considered to be conservative, as a 1, 2, or 3 to be liberal,
and as a 4 to be moderate.
Close to half of Texans (48 percent) identify as conservative, more than double the percentage (21 percent) identifying as liberal. Figure 1.1 highlights, however, that these statewide
percentages mask considerable ideological variance among men and women, members of different ethnic/racial groups, and generational cohorts. For example, men as a group are notably
more conservative than women (54 percent vs. 42 percent), and Anglos (57 percent) notably
more conservative than either Latinos (35 percent) or African Americans (26 percent). At the
same time, however, no noteworthy gender or ethnic/racial differences exist in the proportion
of liberals, which are fairly equal between men and women and among the three principal
ethnic/racial groups in the state (we do not have sufficient data with which to analyze Asian
American ideological self-identification).
Data also are provided for Texans based on their political generation: the Millennial
Generation (those born since 1981), Generation X (those born between 1965 and 1980), the
Baby Boom Generation (those born between 1946 and 1964), and the Silent Generation
(those born between 1928 and 1945).2 As a group, members of the Millennial Generation
tend to be significantly less conservative and more liberal than members of the other generations, with the ideological gulf separating Millennials from their Silent Generation grandparents and great-grandparents far and away the widest. It will remain to be seen if Millennials
become more conservative (and less liberal) as they age, or if this more liberal ideological
profile will remain a hallmark of the Millennial Generation for years to come.
3
liberal
A political ideology
marked by the advocacy of using government to improve the
welfare of individuals,
government regulation of the economy,
support for civil rights,
and tolerance for social
change.
1 Texas Political Culture and Diversity
4
FIGURE 1.1 Texans’ Ideology
Public opinion polling indicates that twice as many Texans self-identify as conservative than as liberal.
Ideology
All Registered Voters
Key
Liberal
Moderate
21
48
Conservative
31
Gender
20
22
42
54
26
36
Men
Women
Ethnicity/Race
26
20
25
57
49
African American
23
35
23
42
Anglo
Latino
Generation
28
35
37
Millenial
★ CTQ
33
Gen X
15
20
22
45
51
29
Baby Boom
22
63
Silent
Explain the differences between conservative and liberal ideologies. What noteworthy
ideological differences exist across genders, ethnic/racial groups, and generational
cohorts in Texas?
Source: University of Texas/Texas Tribune Polls: 2011–2016.
Political Culture, Partisanship, and Public Policy
Figure 1.2 highlights the considerable amount of ideological variance across the state’s
twenty most populous counties, which combined contain almost three-fourths of the Texas
population. At the liberal end of the ideological spectrum, by itself, is Travis County (Austin),
with an average ideological score of 3.56. The next most liberal counties, El Paso and
FIGURE 1.2 The Most Populous Texas Counties from Most Liberal to Most
Conservative
The ideological profiles of the largest Texas counties vary from liberal Travis County
to conservative Brazoria County, with the state’s four most populous counties (Harris,
Dallas, Tarrant, and Bexar) having very similar profiles.
The Most Populous Texas Counties from
Most Liberal to Most Conservative
3.56
County
Travis
El Paso
4.22
Nueces
4.23
Dallas
4.29
Harris
4.31
Williamson
4.32
Bexar
4.33
Tarrant
4.33
Cameron
4.36
Hidalgo
4.36
Bell
4.41
Jefferson
4.51
Denton
4.53
Collin
4.55
Fort Bend
4.55
4.64
Montgomery
Galveston
4.76
McLennan
4.78
4.87
Lubbock
4.97
Brazoria
1
2
3
4
5
Mean Ideological Position of County Voters
(1=Extremely Liberal, 4=In the Middle, 7=Extremely Conservative)
★ CTQ
What factors help explain why Travis County residents are so
much more liberal on average than residents of the state’s
other major counties?
Source: University of Texas/Texas Tribune Polls: 2011–2016.
5
6
1 Texas Political Culture and Diversity
Nueces (Corpus Christi), are noticeably more conservative than Travis County, and proximate ideologically to the core urban counties of the state’s three largest metropolitan areas.
The state’s four most populous counties (Harris, Dallas, Tarrant, and Bexar) are grouped very
closely together, with nearly indistinguishable average ideological scores ranging from 4.29 in
Dallas County to 4.33 in Bexar and Tarrant counties.
Nine counties have an average ideological score above the state average of 4.47. These
more conservative counties fall into two distinct categories. One group consists of suburban
counties adjacent to the state’s two dominant metropolises, with Brazoria, Fort Bend, Galveston, and Montgomery counties constituting the principal
population centers of the Houston suburbs and Collin and
Denton Counties the leading Dallas–Fort Worth suburbs.
Did You Know? While Texans overall are
The remaining three conservative counties are the hubs of
evenly split 50–50 on the issue, 71 percent of those
regional population centers in different regions of Texas:
under the age of 30 believe gays and lesbians should
Jefferson County (Beaumont) in the southeast, McLennan
have the right to marry.3
County (Waco) in the center, and Lubbock County in the
northwest.
Partisanship
Texans’ conservative political views are reflected in their partisan identification. Figure 1.3
shows that 48 percent of all Texans self-identify as Republicans and 41 percent as Democrats.
A little more than one out of every ten Texans (11 percent) is a true independent, someone
who does not identify in any way with either the Democratic Party or the Republican Party.
The figure also underscores the substantial gender, ethnic/racial, and generational differences in party identification in Texas. For example, women are significantly more likely to
identify as Democrats than men, and men are significantly more likely to identify as Republicans than women. Profound ethnic/racial partisan identification gaps exist, with 84 percent
of African Americans identifying as Democrats and a mere 6 percent as Republicans. In contrast only 28 percent of Anglos identify as Democrats and 62 percent as Republicans. Among
Latinos, 55 percent identify as Democrats and 33 percent as Republicans. One half of Millennials (50 percent) identify as Democrats and 35 percent as Republicans; the proportions are
roughly reversed for their Silent Generation elders, who are much more likely to self-identify
as Republicans (61 percent) than as Democrats (32 percent).
Public opinion data and actual election results underscore the dominance of the more conservative Republican Party in Texas during the past 20 years. We will examine the ideological
and policy differences between the two political parties in greater depth in Chapter 5.
Public Policy
Conservative opinions have been translated into most of Texas’s public policies. The state’s
tax burden is low compared to other states, and the state proportionally devotes fewer financial resources to public services than most other states. Texas is known nationally for its low
tax and limited government model that contrasts with the higher tax and more active government model seen in states like California and New York.
Texas also has used the power of the state to enforce certain conservative social values.
It has, for instance, passed legislation designed to reduce the number of abortions and to
impose stiff penalties on lawbreakers. It also has maintained a ban on casino gambling (unlike
its neighbors) and resisted efforts to allow the use of marijuana for medicinal purposes (unlike
a majority of the U.S. states).
Subsequent chapters explore the myriad of ways through which the state’s political culture
has influenced and continues to influence the design and implementation of public policy in
a wide range of areas.
Political Culture, Partisanship, and Public Policy
7
FIGURE 1.3 Texans’ Partisanship
More Texans self-identify as Republicans than as Democrats, although the Republican advantage is less than 10 percent.
Party ID
All Registered Voters
Key
Democrat
Independent
48
41
Republican
11
Gender
38
51
44
11
46
10
Men
Women
Ethnicity/Race
10
6
28
62
84
African American
33
10
55
12
Anglo
Latino
Generation
35
50
11
15
Millenial
★ CTQ
43
46
Gen X
40
50
32
61
7
10
Baby Boom
Silent
What notable differences are there in partisan identification across genders, ethnic/
racial groups, and generational cohorts?
Source: University of Texas/Texas Tribune Polls: 2011–2016.
8
1 Texas Political Culture and Diversity
Texas’s Cultural Regions
LO 1.2 Differentiate the attributes that describe the major Texas regions.
Texas Cultural Regions
In his seminal study of Texas culture, D. W. Meinig found that the cultural diversity of Texas
was more apparent than its homogeneity and that no unified culture had emerged from the
various ethnic and cultural groups that settled Texas.4 He believed that the “typical Texan,”
like the “average American,” did not exist but rather was an oversimplification of the more
distinctive social, economic, and political characteristics of the state’s inhabitants.
Meinig viewed modern regional political culture as largely determined by migration patterns because people take their culture with them as they move geographically. Meinig believed
that Texas (circa the 1960s) had evolved into nine fairly distinct cultural regions. However,
whereas political boundaries are fixed, cultural divisions are often blurred and transitional.
For example, the East Texas region shares a political culture with much of the Upper South,
whereas West Texas shares a similar culture with eastern New Mexico. Figure 1.4 shows the
nine most distinctive regions in Texas.
The effects of mass media, the mobility of modern Texans statewide and beyond, and
immigration from abroad and from the other 49 states blur the cultural boundaries within
Texas, with its bordering states, and with Mexico. Although limited because it does not take
into account these modern-day realities, Meinig’s approach still provides a useful guide to a
general understanding of Texas political culture, attitudes, and beliefs based on geography
and history.
East Texas East Texas is a social and cultural extension of the Old South. It is primarily rural and biracial. Despite the changes brought about by civil rights legislation, African
American “towns” still exist alongside Anglo “towns,” as do many segregated social and economic institutions.
Politics and commerce in many East Texas counties and cities are frequently dominated by
old families, whose wealth is usually based on real estate, banking, construction, and retail.
Cotton—once “king” of agriculture in the region—has been replaced by cattle, poultry, and
timber. As a result of the general lack of economic opportunity, young East Texans from cities
like Longview and Palestine migrate to metropolitan areas, primarily Dallas–Fort Worth and
Houston. Seeking tranquility and solitude, retiring urbanites have begun to revitalize some
small towns and rural communities that lost population to the metropolitan areas. Fundamentalist Protestantism dominates the region spiritually and permeates its political, social,
and cultural activities.
The Gulf Coast Texas was effectively an economic colony before 1900—it sold raw
materials to the industrialized North and bought northern manufactured products. However,
in 1901 an oil well named Spindletop drilled near Beaumont, in an area that because of its
oil wealth quickly became known as the “golden triangle,” ushered in the age of Texas oil,
and the state’s economy began to change. Since the discovery of oil, the Gulf Coast has experienced almost continuous growth, especially during World War II, the Cold War defense
buildup, and the various energy booms of the late twentieth and early twenty-first centuries.
In addition to being an industrial and petrochemical center, the Gulf Coast is one of the
most important shipping centers in the nation. Investors from the northeastern states backed
Spindletop, and its success stimulated more and more out-of-state investment. Local wealth
was also generated and largely reinvested in Texas to promote long-term development.
Texas’s Cultural Regions
FIGURE 1.4 Texas Cultural Regions
Panhandle
West
North
East
Central
Gulf Coast
South
Far West
German Hill Country
Amarillo
Wichita Falls
Lubbock
Dallas
Fort Worth
Big Spring
Midland
El Paso
Odessa
Longview
Tyler
San Angelo
Lufkin
Brenham
Beaumont
Killeen
Austin Houston
N
San Antonio
Del Rio
Victoria
Orange
Port
Arthur
Galveston
Lake Jackson
Crystal City
Corpus Christi
Laredo
1
100
miles
★ CSQ
200
Rio Grande City
The
Valley
McAllen
Brownsville
In which cultural region do you reside? Construct your own
cultural description of the region in which you live. To make
your essay complete, present evidence as to whether the area
is predominantly liberal or conservative; Democratic or Republican; urban, suburban, or rural. Present evidence of which
industries and ethnic/racial groups predominate? Use census
data and election returns from the Texas Secretary of State to
support your conclusions.
Source: Cengage Learning
A Boom Based in Houston Though volatile, the state’s petrochemical industry,
which is concentrated on the Gulf Coast, has experienced extraordinary growth, creating a
boomtown psychology. Rapid growth fed real estate development and speculation throughout the region. The Houston area especially flourished, and Harris County (Houston) grew
to become the third-most-populous county in the United States, behind Los Angeles County
in California and Cook County (Chicago) in Illinois.
Houston’s initial growth after World War II was fueled by a flood of job seekers from East
Texas and other rural areas of the state. This influx gave the Gulf Coast the flavor of rural
Texas in an urban setting. Houston’s social and economic leadership was composed of second- and third-generation elites whose forebears’ wealth came from oil, insurance, construction, land development, and/or banking.
Houston’s rural flavor diminished over the years as the U.S. economy transformed
from industrial to postindustrial. This transformation attracted migrants from the North.
9
10
1
Texas Political Culture and Diversity
IMAGE 1.1 To comply with federal law Harris County provides election-related information and ballots in English, Spanish, Vietnamese, and Chinese, with this screen-shot
showing information provided in Vietnamese.
★ CTQ
ranchero culture
A quasi-feudal system
whereby a property’s
owner, or patrón, gives
workers protection and
employment in return
for their loyalty and
service.
Creole
A descendant of European Spanish immigrants to the Americas.
Mestizo
A person of both
Spanish and Native
American lineage.
The Valley
An area along the
Texas side of the Rio
Grande known for its
production of citrus
fruits.
What are some arguments in favor and against providing voters with
information in languages other than English?
This migration included both skilled and unskilled workers and added large numbers of welleducated young executives and professionals to the Houston elite pool. Today, the Gulf Coast
has become a remarkably vibrant and energetic region, and Houston, the world’s energy capital, boasts many corporate headquarters.
The Gulf Coast economy also serves as a pole for immigration from the Americas, Asia,
Europe, and Africa, which gives modern Houston an international culture comparable to
that found in Los Angeles and New York. In fact, voters in Harris County are given the
option of casting a ballot in Chinese or Vietnamese, in addition to English and Spanish as is
the case elsewhere in the state. See Image 1.1 from the Harris County Clerk’s website for an
example of information on early voting that is provided in Vietnamese.
South Texas The earliest area settled by Europeans, South Texas developed a ranchero
culture on the basis of livestock production that was similar to the feudal institutions in
distant Spain. The ranchero culture is a quasi-feudal system whereby a property’s owner,
or patrón, gives workers protection and employment in return for their loyalty and service.
Creoles, who descended from Spanish immigrants, were the economic, social, and political
elite, whereas the first Texas cowboys who did the ranch work were Native Americans or
Mestizos of mixed Spanish and Native American heritage. Anglo Americans first became
culturally important in South Texas when they gained title to a large share of the land in the
region following the Texas Revolution of 1836. However, modern South Texas still retains
elements of the ranchero culture, including some of its feudal aspects. Large ranches, often
owned by one family for multiple generations, are prevalent; however, wealthy and corporate
ranchers and farmers from outside the area are becoming common.
Because of the semitropical South Texas climate, The Valley (of the Rio Grande) and the
Winter Garden around Crystal City were developed into (and continue to be) major citrus
and vegetable producing regions by migrants from the northern United States in the 1920s.
These enterprises required intensive manual labor, which brought about increased immigration from Mexico. Today, South Texas Latinos often trace their U.S. roots to the 1920s or
Texas’s Cultural Regions
11
later because many of the original Latino settlers had been driven south of the Rio Grande
after the Texas Revolution.
Far West Texas Far West Texas, also known as the “Trans-Pecos region,” exhibits
elements of two cultures, possessing many of the same bicultural characteristics as South
Texas. Its large Mexican American population often maintains strong ties with relatives and
friends in Mexico. And, the Roman Catholic Church strongly influences social and cultural
attitudes on both sides of the border.
Far West Texas is a major commercial and social passageway between Mexico and the
United States. El Paso, the “capital” of Far West Texas and the sixth-largest city in the state,
is a military, manufacturing, and commercial center. El Paso’s primary commercial partners
are Mexico and New Mexico. While the rest of Texas is located in the Central Time Zone, El
Paso County and adjacent Hudspeth County are in the Mountain Time Zone. The economy
of the border cities of Far West Texas, like that of South Texas, is closely linked to Mexico
and has benefited from the economic opportunities brought about by the North American
Free Trade Agreement (NAFTA), a treaty that has helped remove trade barriers among
Canada, Mexico, and the United States. NAFTA has served as an economic stimulus for the
Texas Border because it is a conduit for much of the commerce with Mexico. The agricultural
economy of much of the region depends on livestock production, although some irrigated
row-crop agriculture is present.
The Texas Border South and Far West Texas comprise the area known as the “Texas
Border.” A corresponding “Mexico Border” includes the Mexican states of Chihuahua, Coahuila, Nuevo León, and Tamaulipas. It can be argued that the Texas Border and the Mexico
Border are two parts of an economic, social, and cultural region with a substantial degree
of similarity that sets it apart from the rest of the United States and of Mexico. The Border
region, which is expanding in size both to the north and to the south, has a binational, bicultural, and bilingual subculture in which internationality is commonplace and the people,
economies, and societies on both sides constantly interact.5
South and Far West Texas are “mingling pots” for the Latino and Anglo American cultures. Catholic Latinos often retain strong links with Mexico through extended family and
friends in Mexico and through Spanish-language media. Many Latinos continue to speak
Spanish; in fact, Spanish is also the commercial and social language of choice for many of the
region’s Anglos. The Texas Border cities are closely tied to the Mexican economy on which
their prosperity depends. Although improving economically, these regions remain among the
poorest in the United States.
The economy of the Texas Border benefits economically from maquiladoras, which are
Mexican factories where U.S. corporations employ lower-cost Mexican labor for assembly
and piecework. Unfortunately, lax environmental and safety enforcement in Mexico result in
high levels of air, ground, and water pollution in the border region. In fact, the Rio Grande is
now one of America’s most ecologically endangered rivers.
The Texas Border also serves as a major transshipment point for drug cartels as they bring
illegal drugs such as marijuana and heroin from Mexico for sale in the thriving U.S. market
for illicit narcotics. In addition, a significant share of undocumented immigration into the
United States occurs in the Texas Border region.
In 2015 the Texas Legislature boosted funding for additional Department of Public Safety
officers to be stationed along the border to combat drug and human trafficking and indirectly assist the U.S. Border Patrol. The legislature also extended funding to maintain Texas
National Guard troops in the border region temporarily and provided additional funds for
local law enforcement in the border counties. A majority of border residents welcome the
bicultural
Encompassing two
cultures.
North American Free
Trade Agreement
(NAFTA)
A treaty that has
helped remove trade
barriers among Canada, Mexico, and the
United States and is
an economic stimulus
for the Texas Border
because it is a conduit
for much of the commerce with Mexico.
maquiladoras
Mexican factories
where U.S. corporations employ inexpensive Mexican labor
for assembly and
piecework.
12
1 Texas Political Culture and Diversity
additional DPS officers and especially the enhanced funding for financially strapped local
law enforcement agencies. However, a similarly large majority oppose the presence of the
National Guard troops, which they believe unfairly stigmatizes the region, is ineffective
because members of the Texas National Guard are not empowered to make arrests, and has
more to do with electoral politics than good public policy.
German Hill Country The Hill Country north and west of San Antonio was settled
primarily by immigrants from Germany but also by Czech, Polish, and Norwegian immigrants. Although the immigrants inter-married with Anglo Americans, Central European
culture and architecture were dominant well into the twentieth century. Skilled artisans were
common in the towns; farms were usually moderate in size, self-sufficient, and family owned
and operated. Most settlers were Lutheran or Roman Catholic, and these remain the most
common religious affiliations of present-day residents.
The German Hill Country is still a distinct cultural region. Although its inhabitants
have become “Americanized,” they still retain many of their Central European cultural traditions. Primarily a farming and ranching area, the Hill Country is socially and politically
conservative.
Migration into the region is increasing. The most significant encroachment into the Hill
Country is residential growth from rapidly expanding urban areas, especially San Antonio
and Austin. Resorts and weekend country homes for well-to-do urbanites are beginning to
transform the cultural distinctiveness of the German Hill Country.
West Texas The defeat of the Comanches in the 1870s opened West Texas to Anglo
American settlement. Migrating primarily from the southern United States, these settlers
passed their social and political attitudes and southern Protestant fundamentalism on to their
descendants.
Relatively few African Americans live in modern West Texas, but Latinos have migrated
into the region in significant numbers, primarily to the cities and the intensively farmed
areas. West Texas is socially and politically conservative, and its religion is Bible Belt
fundamentalism.
The southern portion of the area emphasizes sheep, goat, and cattle production. In
fact, San Angelo advertises itself as the “Sheep and Wool Capital of the World.” Nearby
Abilene is home to three private Christian universities (Abilene Christian University, Hardin Simmons University, and McMurry University) and, like San Angelo (Goodfellow
AFB), is the site of a United States Air Force Base (Dyess AFB). Southern West Texas,
which is below the Cap Rock Escarpment, is the leading oil-producing area (the Permian
Basin) of Texas. The cities of Midland and Odessa owe their existence almost entirely to
oil and related industries.
Northern West Texas is part of the Great Plains and High Plains and is primarily agricultural, with cotton, grain, and feedlot cattle production predominating. In this part of semiarid West Texas, outstanding agricultural production is made possible by extensive irrigation
from the Ogallala Aquifer. The large amount of water used for irrigation is however gradually
depleting the Ogallala. This not only affects the current economy of the region through
higher costs to farmers but also serves as a warning signal for its economic future.
The Panhandle Railroads advancing from Kansas City through the Panhandle
brought Midwestern farmers into this region, and wheat production was developed largely by
migrants from Kansas. Because the commercial and cultural hub of the region was Kansas
City, the early Panhandle was basically Midwestern in both character and institutions. The
modern Texas Panhandle however shares few cultural attributes with the American Midwest.
Texas’s Cultural Regions
13
Its religious, cultural, and social institutions function with little discernible difference from
those of northern West Texas. The Panhandle economy is also supported by the production
of cotton and grains, the cultivation of which depends on extensive irrigation from the Ogallala Aquifer. Feedlots for livestock and livestock production, established because of proximity
to the region’s grain production, are major economic enterprises in their own right. Effective
conservation of the Ogallala Aquifer is critical to the economic future of both northern West
Texas and the Panhandle.
North Texas North Texas is located between East and West Texas and exhibits many
characteristics of both regions. Early North Texas benefited from the failed French socialist colony of La Réunion, which included many highly trained professionals in medicine,
education, music, and science. (La Réunion was located on the south bank of the Trinity
River, across from what is today downtown Dallas.) The colonists and their descendants
helped give North Texas a cultural and commercial distinctiveness. North Texas today is
dominated by the Dallas–Fort Worth metropolitan area, often referred to as the Metroplex.
The Metroplex has become a banking and commercial center of national and international
importance.
When railroads came into Texas from the North in the 1870s, Dallas became a rail hub,
and people and capital from the North stimulated its growth. Fort Worth became a regional
capital that looked primarily to West Texas. The Swift and Armour meatpacking companies,
which moved plants to Fort Worth in 1901, were the first national firms to establish facilities
close to Texas’s natural resources. More businesses followed, and North Texas began its evolution from an economic colony to an industrially developed area.
North Texas experienced extraordinary population growth after World War II, with
extensive migration from the rural areas of East, West, and Central Texas. The descendants
of these migrants, after several generations, tend to have urban attitudes and behavior. Recent
migration from other states, especially from the North, has been significant. Many international corporations have established headquarters in North Texas and their employees contribute to the region’s diversity and cosmopolitan environment.
Although North Texas is more economically diverse than most other Texas regions, it
does rely heavily on banking, insurance, and the defense and aerospace industries. Electronic
equipment, computer products, plastics, and food products are also produced in the region.
North Texas’s economic diversity has allowed it to avoid or at least attenuate some of the
boom–bust cycles experienced by other regions in the state where the economy is more dependent on a single industry or a smaller number of industries.
Central Texas Central Texas is often called the “core area” of Texas. It is roughly triangular in shape, with its three corners being Houston, Dallas–Fort Worth, and San Antonio.
The centerpiece of the region is Austin (Travis County), one of the fastest-growing metropolitan areas in the nation. Already a center of government and higher education, Austin
has become the “Silicon Valley” of high-tech industries in Texas as well as an internationally
recognized cultural center, whose annual South by Southwest Music, Film and Interactive
Festival (SXSW) is now a global event.
Austin’s rapid growth is a result of significant migration from the northeastern United
States and the West Coast, as well as from other regions in Texas. The influx of well-educated
people from outside Texas has added to the already substantial pool of accomplished Austinites. The cultural and economic traits of all the other Texas regions mingle here, with
no single trait being dominant. Although the Central Texas region is a microcosm of Texas
culture, Austin itself stands out as an island of liberalism in a predominantly conservative
state (see Figure 1.2).
Metroplex
The greater Dallas–
Fort Worth metropolitan area.
14
1
Texas Political Culture and Diversity
Politics and Cultural Diversity
LO 1.3 Analyze Texans’ political struggles over equal rights and evaluate
their success in Texas politics today and their impact on the state’s
political future.
The politics of the state’s cultural regions have begun to lose their distinctive identities as
Texas became more metropolitan and economically and ethnically diverse. With this changing environment, a number of groups and individuals have endeavored to achieve greater
cultural, political, social, and economic equality in the state.
Texans’ Struggle for Equal Rights
Anglo male Texans initially resided atop the pyramid of status, wealth, and civil rights in
organized Texas society. They wrote the rules of the game and used those rules to protect
their position against attempts by females, African Americans, and Latinos to share in the
fruits of full citizenship. Only after the disenfranchised groups organized and exerted political pressure against their governments did the doors of freedom and equality open enough
for them to come inside.
Female Texans Women in the Republic of Texas could neither serve on juries nor
Bettmann/Getty Images
vote, but unmarried women retained many of the rights that they had enjoyed under Spanish
law, which included control over their property. Married women retained some Spanish law
benefits because, unlike under Anglo-Saxon law, Texas marriage law did not join the married
couple into one legal person with the husband as the head. Texas married women could own
inherited property, share ownership in community property, and make a legal will. However,
the husband had control of all the property, both separate and
community (including earned income), and an employer could
IMAGE 1.2 Texan Minnie Fisher
Cunningham was a champion for women’s
not hire a married woman without her husband’s consent.6
suffrage in the state.
Divorce laws were restrictive on both parties, but a husband
could win a divorce in the event of a wife’s “amorous or lascivious conduct with other men, even short of adultery,” or if she had
committed adultery only once. He could not gain a divorce for
concealed premarital fornication. On the other hand, a wife could
gain a divorce only if “the husband had lived in adultery with
another woman.” Physical violence was not grounds for divorce
unless the wife could prove a “serious danger” that might happen
again. In practice, physical abuse was tolerated if the wife behaved
“indiscreetly” or “provoked” her husband. Minority and poor
Anglo wives had little legal protection from beatings because the
woman’s “station in life” and “standing in society” were also legal
considerations.7
Governor James “Pa” Ferguson (1915–17) unwittingly aided
the women’s suffrage movement during the World War I period.
Led by Minnie Fisher Cunningham, Texas suffragists organized,
spoke out, marched, and lobbied for the right to vote during the
Ferguson Administration but were initially unable to gain political traction because of Ferguson’s opposition. When he became
★ SRQ
Describe legal restrictions on
women before the suffrage
embroiled in political controversy over funding for the University
movement. What explained
of Texas, women joined in the groundswell of opposition. Suffragthe opposition to women havists effectively lobbied state legislators and organized rallies advoing the right to vote?
cating Ferguson’s impeachment.8
Politics and Cultural Diversity
15
Texas women continued to participate actively in the political arena although they lacked
the right to vote. They supported William P. Hobby, who was considered receptive to women’s suffrage, in his campaign for governor as “The Man Whom Good Women Want.” The
tactic was ultimately successful, and women won the legislative battle and gained the right to
vote in the 1918 Texas primary.9
National suffrage momentum precipitated a proposed constitutional amendment establishing the right
Did You Know? In 1924 Miriam “Ma”
of women to vote throughout the United States. Having
Ferguson (wife of Jim Ferguson) became only the
endured more than five years of “heavy artillery” from
second woman in the United States to be elected
Cunningham and the Texas Equal Suffrage Association,
governor. She remained the sole woman to be elected
legislative opposition crumbled, and in June of 1919
governor of Texas until Ann Richards in 1990.
Texas became one of the first southern states to ratify
the Nineteenth Amendment. Texas women received full
voting rights in 1920.10
Women were given the right to serve on juries in 1954. Texas’s voter ratification of the
Equal Rights Amendment in 1972 and the passage of a series of laws titled the Marital Property Act amounted to major steps toward women’s equality and heralded the beginning of a
more enlightened era in Texas. The Act granted married women equal rights in insurance,
banking, real estate, contracts, divorce, child custody, and property rights. This was the first
such comprehensive family law in the United States.11
Until 1973, as in most states, abortion was illegal in Texas. In that year, Texas attorney
Sarah Weddington argued a case before the U.S. Supreme Court that still stands at the
center of national abortion debate: Roe v. Wade. The Roe decision overturned Texas statutes
that criminalized abortion and in doing so established a limited, national right of privacy for
women to terminate a pregnancy. Roe followed Griswold v. Connecticut, a 1965 privacy case
that overturned a state law criminalizing the use of birth control.
Most recently, in its 2016 Whole Woman’s Health v. Hellerstedt decision, the U.S. Supreme
Court handed down perhaps its most influential abortion-related decision since Roe. The
Court held key portions of 2013 Texas abortion legislation unconstitutional, including the
requirements that abortion clinics comply with the same standards as ambulatory surgical
centers (ASCs) and that doctors performing abortions possess admitting privileges at nearby
hospitals. Because an indirect effect of these requirements was the closure or pending closure
of a large majority of the state’s abortion clinics, including all those located outside the state’s
four largest metro areas, in the opinion of the Supreme Court the law placed an undue burden on women seeking an abortion in Texas, and therefore was unconstitutional.
African American Texans African Americans from other areas of the United States
were brought to Texas as slaves and served in that capacity until the end of the Civil War.
They first learned of their freedom on June 19, 1865, a date commemorated annually at
Juneteenth celebrations throughout the country, including Texas, where the day has been an
official state holiday since 1980. During Reconstruction, African Americans both voted and
held elective office, but the end of Reconstruction and Anglo opposition effectively ended
African Americans’ political participation in the state.
Civil rights were an increasingly elusive concept for ethnic and racial minorities following
Reconstruction. African Americans were legally denied the right to vote in the Democratic
white primary, the practice of excluding African Americans from primary elections in the
Texas Democratic Party. Schools and public facilities such as theaters, restaurants, beaches,
and hospitals were legally segregated by race. Segregation laws were enforced by official law
enforcement agents as well as by Anglo cultural norms and unofficial organizations using terror tactics. Although segregation laws were not usually formally directed at Latinos, who were
white primary
The practice of excluding African Americans
from primary elections
in the Texas Democratic Party.
16
1
Texas Political Culture and Diversity
Ku Klux Klan (KKK)
A white supremacist
organization.
legally white, such laws were effectively enforced against them as well. The white supremacist
organization known as the Ku Klux Klan (KKK), members of local law enforcement, and
the Texas Rangers actively participated in violence and intimidation of both Latinos and
African Americans to keep them “in their segregated place.” Lynching was also used against
both groups, often after torture.12
The KKK was first organized in the late 1860s to intimidate freed African American
slaves. A modified, enlarged version was reborn in the 1920s with a somewhat altered mission. The new Klan saw itself as a patriotic, Christian, fraternal organization for native-born
white Protestants. Its members perceived a general moral decline in society, precipitated by
“modern” young people, and a basic threat to the Protestant white Christian “race.” Klansmen
sensed a threat to their values from African Americans, Jews, Catholics, Latinos, German
Americans, and other “foreigners.” The Klan used intimidation, violence, and torture that
included hanging, tarring and feathering, branding, beating, and castration as means of coercion. As many as 80,000 Texans (which amounted to almost 10 percent of the adult Anglo
male population at the time), may have joined the “invisible empire” in an effort to make
the world more to their liking. Many elected officials—federal and state legislators as well
as county and city officials—were either avowed Klansmen or friendly neutrals. In fact, the
Klan influenced Texas society to such an extent that its power was a major political issue from
1921 through 1925.13
In response to this racially charged atmosphere, a number of organizations committed
to civil rights were founded or grew larger during the 1920s. These included the National
Association for the Advancement of Colored People (NAACP), established in 1909, and the
League of United Latin American Citizens (LULAC), which was formed in Corpus Christi
in 1929.
When Dr. L. H. Nixon, an African American from El Paso, was denied the right to vote
in the Democratic primary, the NAACP instituted legal action, and the U.S. Supreme Court
found in Nixon v. Herndon (1927) that the Texas White Primary law was unconstitutional.
However, the Texas Legislature transferred control of the primary from the state to the executive committee of the Texas Democratic Party, and the discrimination continued. Dr. Nixon
again sought justice in the courts, and in 1931 the U.S. Supreme Court ruled the new scheme
was also unconstitutional. Texas Democrats then completely excluded African Americans
from party membership. In Grovey v. Townsend (1935), the U.S. Supreme Court upheld this
ploy, and the Texas Democratic primary remained an all-white organization. Although it had
suffered a temporary setback in the episode, the NAACP had proven its potential as a viable
instrument for African American Texans to achieve justice.14
The Texas branch of the NAACP remained active during the World War II period and
served as a useful vehicle for numerous legal actions to protect African American civil rights.
African Americans eventually won the right to participate in the Texas Democratic primary
when the U.S. Supreme Court ruled in Smith v. Allwright (1944) that primaries were a part of
the election process and that racial discrimination in the election process is unconstitutional.
Twenty years later, the first African Americans since Reconstruction were elected to the Texas
Legislature.
In 1946 Heman Sweatt applied for admission to the University of Texas Law School, which
by Texas law was segregated (see Chapter 2). State laws requiring segregation were constitutional as long as facilities serving African Americans and whites were equal. Because Texas
had no law school for African Americans, the legislature hurriedly established a law school for
Sweatt and, for his “convenience,” located it in his hometown of Houston. Although officially
established, the new law school lacked both faculty and a library and, as a result, the NAACP
again sued the state. The U.S. Supreme Court ruled that education at Sweatt’s new law school
indeed was not equal to that of the University of Texas Law School and ordered him admitted
17
to that institution. It is worth noting that “separate but equal” facilities remained legal after
this case because the Court did not overturn Plessy v. Ferguson, which granted the constitutional sanction for legal segregation. Instead, the Court simply ruled that the new law school
was not equal to that at the University of Texas.15 The U.S. Supreme Court did not finally
outlaw segregation until the Brown v. Board of Education decision in 1954.
The political and social fallout from the U.S. Supreme Court’s Brown v. Board of Education (1954) public school desegregation decision did not bypass Texas. When the Mansfield
Independent School District, just to the southeast of Fort
Worth, was ordered to integrate in 1956, angry Anglos
surrounded the school and prevented the enrollment of
three African American children. Governor Allan ShivDid You Know? In 1966 Texas Western
(now the University of Texas at El Paso) won the NCAA
ers declared the demonstration an “orderly protest” and
Division I men’s basketball championship, the first
sent the Texas Rangers to support the protestors. Because
championship won by a team where all five starters
the administration of President Dwight D. Eisenhower
were African American. They defeated an all-white
took no action, the school remained segregated. The
University of Kentucky team coached by Adolph Rupp.
Mansfield school desegregation incident “was the first
example of failure to enforce a federal court order for the
desegregation of a public school.”16 Only in 1965, when
IMAGE 1.3 Heman Sweatt successfully intefacing a loss of federal funding, did the Mansfield ISD
grated Texas public law schools after the U.S.
finally desegregate.
Supreme Court began to chip away at the “sepaFederal District Judge William Wayne Justice in United
rate but equal” doctrine in the landmark case of
States v. Texas (1970) ordered the complete desegregation of all
Sweatt v. Painter (1950).
Texas public schools. The decision was one of the most extensive desegregation orders in history and included the process
for executing the order in detail. The U.S. Fifth Circuit Court
of Appeals largely affirmed Justice’s decision but refused to
extend its provisions to Latino children.17
The 1960s is known for the victories of the national civil
rights movement. Texan James Farmer was cofounder of
the Congress of Racial Equality (CORE) and, along with
Dr. Martin Luther King Jr., Whitney Young, and Roy Wilkins,
was one of the “Big Four” African American leaders who shaped
the civil rights struggle in the 1950s and 1960s. Farmer, who
followed the nonviolent principles of Mahatma Gandhi, initiated sit-ins as a means of integrating public facilities and freedom rides as a means of registering African Americans to vote.
The first sit-in to protest segregated facilities in Texas was organized with CORE support by students from Wiley and Bishop
Colleges. The students occupied the rotunda of the Harrison
County courthouse in the East Texas city of Marshall.
Latino Texans Like most African Americans, Latinos
were relegated to the lowest-paid jobs as either service workers or farmworkers. The Raymondville Peonage cases in 1929
tested for the first time the legality of forcing vagrants or
debtors to work off debts and fines as labor on private farms.
The practice violated federal statutes but was commonplace
in some Texas counties. The Willacy County sheriff stated in
his defense that Latinos often sought arrest to gain shelter and
that “peonage was not an unknown way of life for them.” The
★ SRQ
The Fourteenth Amendment to the
U.S. Constitution says that no state
shall deny any person the equal
protection of the law. Why did the
U.S. Supreme Court hold that state
laws requiring racial segregation
violated this provision?
Joseph Scherschel/Getty Images
Politics and Cultural Diversity
18
1 Texas Political Culture and Diversity
AP Images
trials resulted in the arrest and conviction of several public
officials and private individuals. The outcome of the trials
was unpopular in the agricultural areas and contrary to the
Did You Know? Lorenzo de Zavala served
as the first vice president of the Republic of Texas in
generally accepted belief that farmers should have a means
1836.
of collecting debts from individual laborers.18
World War II Latino veterans, newly returned to the
state from fighting to make the world safe for democracy,
found discrimination still existed in their homeland. A decorated veteran, Major Hector
Garcia, settled in Corpus Christi and became convinced by conditions in South Texas that
still another war was yet to be fought on behalf of the region’s Latino community. Garcia, a
medical doctor, found farm laborers enduring inhuman living conditions; disabled veterans
starving, sick, and ignored by the Veterans Administration; and an entrenched, unapologetic
Anglo culture that continued to impose public school segregation.
To begin his war, Dr. Garcia needed recruits for his “army.” With other World War II veterans, Dr. Garcia organized the American G.I. Forum in a Corpus Christi elementary school
classroom in March 1948. This organization spread throughout the United States and played
a major role in providing Latinos with full citizenship and civil respect.
One of the incendiary sparks that ignited Latinos in Texas to fight for civil rights was
Private Felix Longoria’s funeral. Longoria was a decorated soldier who died in combat in the
Philippines during World War II. His body was returned in 1949 to the South Texas town
of Three Rivers (midway between San Antonio and Corpus Christi) for burial in the “Mexican section” of the cemetery, which was separated from the “white section” by barbed wire.
But an obstacle developed: the funeral home’s director refused the Longoria family’s request to use its
IMAGE 1.4 Texas Southern University students stage
chapel because “the whites won’t like it.” Longoria’s
a sit-in at a Houston supermarket lunch counter, 1950.
widow asked Dr. Hector Garcia for support, but the
funeral director also refused his request. Dr. Garcia
then sent a flurry of telegrams and letters to Texas
congressmen protesting the actions of the director. Then-Senator Lyndon B. Johnson immediately
responded and arranged for Private Longoria to be
buried at Arlington National Cemetery.19
The fight to organize labor unions was the primary focus for much of the Latino civil activism in
the 1960s and 1970s. In rural areas, large landowners controlled the political and economic systems
and were united in their opposition to labor unions.
The United Farm Workers (UFW) led a strike
against melon growers and packers in Starr County
in the 1960s, demanding a minimum wage and the
resolution of other grievances. Starr County police
officers, the local judiciary, and the Texas Rangers
were all accused of brutality as they arrested and
prosecuted strikers for minor offenses.
On February 26, 1977, members of the Texas
★ PRQ Why did students risk arrest in protests
Farm Workers Union (TFWU), strikers, and other
that focused national attention on segresupporters began a march to Austin to demand a
gation? Why have ethnic and racial minori$1.25 minimum wage and other improvements in
ties used tactics other than voting to
working conditions for farmworkers. Press coverage
achieve their strategic goals?
intensified as the marchers slowly made their way
19
north from the U.S.–Mexico border. Politicians, members of the American
IMAGE 1.5 Gus Garcia, legal
Federation of Labor–Congress of Industrial Organizations (AFL–CIO), and
advisor for the American G.I.
the Texas Council of Churches accompanied the protestors. Governor John
Forum, is shown during a visit to
Connally, who had refused to meet them in Austin, traveled to New Braunfels
the White House. Garcia was the
lead attorney in the U.S. Supreme
with then–House Speaker Ben Barnes and Attorney General Waggoner Carr
Court decision Hernandez v.
to intercept the march and inform strikers that their efforts would have no
Texas, 347 U.S. 475 (1954).
effect. Ignoring the governor, the marchers continued to Austin and held a
6,500-person protest rally at the state capitol. The rally was broken up by the
Texas Rangers and other law enforcement officers. The TFWU took legal
action against the Rangers for their part in the repression of the rally. The
eventual ruling of the U.S. Supreme Court held that the laws the Rangers had
been enforcing were in violation of the U.S. Constitution. The Texas Rangers
were subsequently reorganized and became a part of the Texas Department
of Public Safety.20
One of the first successful legal challenges to segregated schools in Texas was
Delgado v. Bastrop ISD (1948). The suit by Gustavo C. (Gus) Garcia charged
that Minerva Delgado and other Latino children were denied the same school
facilities and educational instruction available to Anglos. The battle continued
until segregated facilities were eventually prohibited in 1957 by the decision in
Hernandez v. Driscoll Consolidated ISD.21
Important to Latinos and, ultimately, all others facing discrimination was
Hernandez v. State of Texas (1954). An all-Anglo jury in the small town of
Edna had convicted Pete Hernandez of murder in 1950. Attorneys Gus Garcia,
Carlos Cadena, John Herrera, and James DeAnda challenged the conviction,
arguing that the systematic exclusion of Latinos from jury duty in Texas violated Hernandez’s right to equal protection under the law guaranteed by the
Fourteenth Amendment of the U.S. Constitution. Texas courts had historically
ruled that Latinos were white, so excluding them from all-Anglo (white) juries
could not be legal discrimination. To change the system, the Latino team of
lawyers would have to change the interpretation of the U.S. Constitution. The
stakes were high. If they failed, Latino discrimination throughout the south★ PRQ Why is it unconstitutional to deny a perwestern United States might legally continue for years. Garcia argued before
son the right to serve
the U.S. Supreme Court that Latinos, although white, were “a class apart” and
on a jury because of
suffered discrimination on the basis of their “class.” The U.S. Supreme Court
ethnicity?
agreed, overturned the Texas courts, and ruled that Latinos were protected by
the Constitution from discrimination by other whites. The Hernandez decision
established the precedent of constitutional protection by class throughout the
United States and was a forerunner of future decisions prohibiting discrimination by gender,
disability, and sexual orientation.22
Lesbian, Gay, Bisexual, and Transgender Texans Discrimination against
lesbian, gay, bisexual, and transgender Texans has long been commonplace in Texas. Furthermore, state law has criminalized certain intimate sexual conduct by two persons of the
same sex.
In 1998 a Harris County sheriff ’s deputy discovered two men having intimate sexual
contact in a private residence, and the men were arrested and convicted for violating a
Texas anti-sodomy statute. Their conviction was appealed and eventually reached the U.S.
Supreme Court in the case Lawrence v. Texas. In Justice Anthony Kennedy’s majority opinion, he stated that the Texas law violated the due process clause of the Fourteenth Amendment, which does not protect sodomy but does protect personal relationships and the ability
Library of Congress Prints and Photographs Division (LC-USZ62-137627)
Politics and Cultural Diversity
20
1 Texas Political Culture and Diversity
AP Images/David J. Phillip
to have those relationships without fear of punishment or criminal classification. The Texas
statute intended to control the most intimate of all human activity, sexual behavior, in the
most private of places, the home. The Lawrence decision simultaneously invalidated sodomy
laws in thirteen other states, thereby protecting same-sex behavior in every state and territory in the United States.
The right to marry was until recently the frontline of the LGBT battle for equal rights, with
this battle complicated by the 1996 federal Defense of Marriage Act (DOMA). DOMA defined
marriage as a legal union between a man and a woman and further stipulated that the federal
government would not recognize same-sex marriages
for purposes of benefits such as social security, veterIMAGE 1.6 Annise Parker became the first openly
ans’ benefits, and income tax filings.23 In 2013 the U.S.
lesbian mayor of a major U.S. city when she assumed
office as Houston’s chief executive in 2010.
Supreme Court decided the case United States v. Windsor, in which it held that federal discrimination against
same-sex couples violated the Fourteenth Amendment
of the U.S. Constitution. And in 2015, in Obergefell v.
Hodges, the U.S. Supreme Court ruled that state bans
on same-sex marriage, such as that in force in Texas as
the result of a 2005 amendment to the Texas State Constitution, were unconstitutional because, as was the case
in Windsor, they violated the Fourteenth Amendment.
A current front in the struggle for LGBT equality in
Texas is increasingly found at the local level throughout
the state, where many cities have adopted nondiscrimination ordinances that among other things provide
protections against discrimination for members of
the LGBT community. Austin, Dallas, El Paso, Fort
Worth, and San Antonio are among the cities that have
this type of nondiscrimination ordinance presently on
the books. Houston had passed a similar ordinance, the
Houston Equal Rights Ordinance (HERO) in 2014,
but it was overturned by a popular vote (61 percent to
39 percent) in 2015 after a contentious campaign in
which HERO opponents highlighted the ordinance’s
provision that allowed biological males who identify
Why
do
younger
and
older
Texans
have
★ CTQ
notably different opinions about sameas females to use women’s restrooms and locker rooms.
sex marriage?
Table 1.1 summarizes Texas practices that the U.S.
Supreme Court has ruled violate the U.S. Constitution.
Cultural Diversity Today
Demographics
Population characteristics, such as age,
gender, ethnicity,
employment, and
income, that social scientists use to describe
groups in society.
Demographics are population characteristics, such as age, gender, ethnicity/race, employment, and income, that social scientists use to describe groups in society, and in Texas these
characteristics are rapidly changing. Texas is one of the fastest-growing states in the nation
and is becoming more culturally diverse as immigrants from other nations and migrants from
other states continue to find it a desirable place to call home.
U.S. Census data and population estimates by the Texas State Demographer underscore
how the state has become much more ethnically/racially diverse over the past 35 years (see
Figure 1.5). In 1980, 66 percent of Texans were Anglo, 21 percent Latino, 12 percent African
American, and less than 1 percent others (see Figure 1.5). During the course of the next 35
years, the share of the Texas population accounted for by Anglos progressively declined and
the share accounted for by Latinos and Asian Americans progressively rose, with the proportion of African Americans remaining roughly the same (dropping from 12 to 11 percent
Politics and Cultural Diversity
TABLE 1.1 Key U.S. Supreme Court Decisions Protecting Texans’ Rights
to Equality and Privacy
This table shows important U.S. constitutional decisions that have expanded
minority rights in Texas and nationwide.
Unconstitutional Texas Practice
U.S. Constitutional Violation
Texas laws permitting the Democratic No state shall deny any person the
right to vote on account of race—
Party to conduct whites-only
primaries. Also used in other southern Fifteenth Amendment.
states.
Landmark Supreme Court Case
Smith v. Allwright (1944)
Texas law requiring racially
segregated law schools. Professional
schools were segregated throughout
the South.
No state shall deny any person
the equal protection of the laws—
Fourteenth Amendment.
Sweatt v. Painter (1950)
Texas practice of denying Latinos the
right to serve on juries.
No state shall deny any person
the equal protection of the laws—
Fourteenth Amendment.
Hernandez v. State of Texas (1954)
State laws mandating statewide
segregation of public schools and
most facilities open to the public.
Texas was among the 17 mostly
southern states with statewide laws
requiring segregation at the time of
the decision.
No state shall deny any person
the equal protection of the laws—
Fourteenth Amendment.
Brown v. Board of Education of
Topeka (1954)
Texas law making abortion illegal;
30 states outlawed abortions for any
reason in 1973.
No state shall deny liberty without
due process of law—Fourteenth
Amendment.
Roe v. Wade (1973)
Texas law making homosexual
conduct a crime; 14 mostly southern
states made homosexual conduct a
crime at the time of the decision.
No state shall deny liberty without
due process of law—Fourteenth
Amendment.
Lawrence v. Texas (2003)
State laws making same-sex marriage
illegal; Texas was among 31 states
with constitutional provisions that
banned same-sex marriage. Most
states had statutes defining marriage
as between one man and one woman.
No state shall deny liberty without
the due process of law; no state shall
deny any person the equal protection
of the laws—Fourteenth Amendment.
Obergefell v. Hodges (2015)
 How has Texas's southern conservative political culture resisted social change?
Why have groups suffering discrimination sought remedy for this discrimination in the U.S. Supreme Court, an institution outside the control of state
politics?
between 1980 and 2015). By 2015, Anglos represented 43 percent of Texans and Latinos 40
percent, with Latinos expected to be the largest single ethnic/racial group in the state when
the next U.S. Census is conducted in 2020.
Voter participation in Texas is historically low, with the state ranking near or at the bottom among the states in terms of the share of the voting age population and of eligible citizens
21
1
Texas Political Culture and Diversity
FIGURE 1.5 Texas Ethnic/Racial Populations, Past and Present: 1980–2015
This figure shows the changing ethnic/racial demographics of Texas.
1%
2%
12%
12%
100
80
2%
2%
2%
3%
4%
4%
11%
11%
11%
21%
25%
Percent of Texans
22
32%
38%
60
40%
40
66%
61%
52%
45%
20
0
1980
Anglos
★ CTQ
1990
Latinos
2000
African Americans
2010
Asian Americans
43%
2015
Others
What potential implications does the changing ethnic/racial
composition of the Texas population have for the state’s political future?
Source: U.S. Census Bureau and Office of the Texas State Demographer.
who turn out to vote (see Chapter 4). Furthermore, Latino political participation is low even
by Texas standards. Given the growing share of eligible voters represented by Latinos, if
Latinos begin to participate at the same rates as African Americans and Anglos, it could have
a dramatic impact on the tenor and substance of politics and public policy in the Lone Star
State.
Equally important, changes in the ethnic/racial makeup of the state’s population will
present decision makers with enormous challenges. Figure 1.7 shows that income inequality
parallels ethnic/racial divisions in Texas. Poverty rates are higher and overall incomes are
lower among African Americans and Latinos compared to Anglos and Asian Americans.
Lower incomes are associated with more limited educational opportunity, inadequate access
to health care, and much less robust participation in the state’s civic life. Poverty drives up the
cost of state social services and is a factor that contributes to crime and familial dysfunction.
How Texas adapts to the state’s changing demographics is likely to be the focus of political
controversy for years to come.
Politics and Cultural Diversity
23
How Does Texas Compare?
in a state is a member of a different ethnic racial group). Its
actual values in the United States today range from 0.89
in Vermont (the country’s least diverse state) to 0.32 in
California (the country’s most diverse state), with a national
Herfindahl Index value of 0.43. Texas ranks fourth among
the 50 states and District of Columbia in terms of its level of
ethnic/racial diversity, with a value of 0.35.
Ethnic/Racial Diversity in the United States
The figure below shows much diversity is found in each
state based on the Herfindahl index which tells us the probability that two individuals randomly selected in a state
will be members of the same ethnic/racial group. The index
ranges in potential value from 1.0 (everyone in a state is a
member of the same ethnic/racial group) to 0.0 (everyone
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
MI
WY
NV
CA
IL
CO
KS
AZ
PA
IA
NE
UT
MO
OH
IN
WV
VA
KY
AR
CT
NJ
RI
DE
MD
SC
MS
TX
NH
MA
NC
TN
OK
NM
NY
AL
GA
LA
AK
FL
HI
Very High Ethnic/Racial Diversity (0.30–0.39)
High Ethnic/Racial Diversity (0.40–0.49)
Moderate Ethnic/Racial Diversity (0.50–0.59)
Low Ethnic/Racial Diversity (0.60–0.69)
Very Low Ethnic/Racial Diversity (0.70–0.90)
FIGURE 1.6 Ethnic/Racial Diversity in the 50 States
Source: U.S. Census Bureau.
FOR DEBATE
★ CTQ
Just as the U.S. states vary in their
level of ethnic/racial diversity, so too
do Texas’s 254 counties. How does
your county compare with neighboring counties in regard to its level of
ethnic/racial diversity?
★ CTQ
How might the level of ethnic/racial
diversity affect a state’s politics and
policies?
1 Texas Political Culture and Diversity
24
FIGURE 1.7 Ethnicity/Race, Income, and Poverty in Texas
Today, inequality among ethnic/racial groups is no longer so much reflected by overt
official legal discrimination as by unequal income and unequal access to education
and health care.
80
Thousands of 2016 Dollars
70
25
22%
$69,800
23%
$64,700
20
60
50
$40,300
40
15
$38,800
12%
10%
10
30
20
5
10
0
0
Asian
Americans
Anglos
Latinos
African
Americans
Median Household Income
★ CTQ
Anglos
Asian
African Latinos
Americans Americans
Percentage Living in Poverty
Why do African Americans and Latinos earn less than Anglos and Asian Americans
in Texas? How do income inequality and increasing ethnic/racial diversity challenge policy makers in Texas?]
Source: The Henry J. Kaiser Family Foundation and the Hobby Center for the Study of Texas at Rice University.
Applying What You Have Learned about
Texas Political Culture
LO 1.4 Apply what you have learned about Texas political culture and
diversity.
You have learned about the demographic and cultural changes that have swept through Texas
in recent years. Because this chapter provides an overview of these changes by the numbers,
we decided to ask Representative Ana Hernandez to put a face on one of these changes—
Latino immigration.
Ana Hernandez was born in Reynosa, Mexico, and raised in the Houston suburb of Pasadena. Hernandez is a practicing attorney and, since first being elected in a 2005 special election at the age of 27, has continuously represented Texas House District 143 on Houston’s
east side, most recently winning reelection without opposition in November 2016. In 2012
the Houston Chronicle listed her as one of the country’s “20 Latino Democrats to Watch Over
the Next 20 Years.”
After you have read Representative Hernandez’s essay, we will ask you to reflect on the
issue of undocumented immigration, keeping in mind that the estimated 40 percent of immigrants entering the United States legally and overstaying their visa are not committing a
Applying What You Have Learned about Texas Political Culture
crime, even though doing so can result in their deportation. On the other hand, it is a federal
crime to cross the border while evading immigration authorities.
We will ask you to evaluate the impact of Latino immigration on the state’s political culture. Consider immigrants’ contributions to the society and the economy, and identify the
economic and social costs of undocumented immigration you may perceive.
POLITICS IN PR ACTICE
The Face of Latino Immigration
by Ana Hernandez
State Representative from Texas House District 143
Like the children of many hardworking families currently in the United States, my early
American experience cannot be found in government documentation. I was brought to the
United States from Mexico on a visitor’s visa when I was an infant. We overstayed our visas
and lived for eight years in the U.S. without documentation.
I still remember the constant state of dread in which our family lived. Trips to the store,
drop-offs at school and church functions had to be painstakingly choreographed in order to
guarantee that at least one of my parents would be able to care for my sister and me in the
event that the other was detained and deported.
This remained our normal state of affairs until the passage of the Immigration Reform and
Control Act of 1986, a bipartisan measure to address our broken immigration system that
was championed by Republican President Ronald Reagan and passed by a Democratic-controlled Congress.
While this attempt at reform was limited in scope and far from perfect, it did provide a means
by which my family could obtain legal permanent residency. With the specter of deportation
no longer hanging over our heads, my mother and father no longer had to partition their time
from one another in order to ensure that I was looked after in the event authorities picked
one of them up off the street. Suddenly, we weren’t living day to day, moment to moment.
We were home to stay.
At age 18, I became a naturalized U.S. citizen. Like so many before me and since, the final
citizenship test was a surreal and nerve-racking experience. Though I had attended American
public schools all my life, I couldn’t help but feel a lead weight in my stomach as the presiding
immigration officer administered my examination. One of my first questions was to state the
nation’s capital. In my nervousness, I answered “Austin, Texas.” The officer looked at me for
a moment that felt like an eternity … and repeated the question, allowing me to compose
myself and state “Washington, DC.”
In so many ways, the pathway to citizenship afforded me delivered on one of our nation’s
most fundamental promises—individual opportunity. Nothing was ever guaranteed in my
life—neither success nor happiness. But, by God’s grace, I now had the chance to make of my
future what I could. I worked hard, earning a scholarship to attend the University of Houston
and later graduating from the University of Texas School of Law. I threw myself into every
opportunity that came my way, serving overseas in the Peace Corps helping to desegregate
the post-Apartheid South African education system, competing for and earning a legislative
★
25
26
1 Texas Political Culture and Diversity
internship in the Texas Capitol, and finally returning to that same building years later as a
State Representative.
My story, that of a young girl from Reynosa, should not be considered remarkable. Rather,
it should be only one success spoken about among a chorus of millions. The stories of the
countless young men and women whose families currently exist in a state of limbo should
make mine appear mundane. Instead, due entirely to a lack of political will to deliver on
America’s promises, they remain stories unfinished, the authors unfairly denied pen and
paper to have a chance to write them.
They are our nation’s future and salvation, a generation of talented, educated, passionate
Texans—doctors, technicians, engineers. Our next captains of industry, and the policy makers who will grow our economy and carry our country’s torch through the next century. Their
stories will be told. That is what motivates me. I fight for every dream deferred.
1. Evaluate the costs and benefits of immigration to Texas.
2. What are the costs of deporting undocumented immigrants? Should special consideration be given to individuals, sometimes called “Dreamers,” whose parents brought them
to the United States as children and whose life is deeply rooted in the country?
3. What cultural and political changes can the state expect as a result of Latino immigration?
★ Chapter Summary
LO 1.1 Analyze the relationships among Texas political
culture, its politics, and its public policies. A political culture reflects people’s political values and beliefs. It explains how
people feel about their government—their expectations of what
powers it should have over their lives and what services it should
provide.
The generally conservative ideological position of Texans
masks some notable subgroup differences based on gender,
ethnicity/race, generational cohort, and geography. For example,
men are on average more conservative than women and Anglos
more conservative than both Latinos and especially African
Americans. At the same time, Millennials are notably more
liberal than Texans in other generational cohorts, especially
those belonging to the Silent Generation, and residents of Travis
County are significantly more liberal than residents of the state’s
other populous counties.
Texans’ predominantly conservative political culture is
reflected in voters’ greater tendency to identify as Republican
than Democratic and in the state’s conservative public policies.
Republicans control state political institutions and have enacted
low tax and spending policies and conservative policies on social
issues such as abortion and same-sex marriage.
LO 1.2 Differentiate the attributes that describe the
major Texas regions. Texas can be divided into a series of
political cultural regions with differing characteristics and traditions: (1) East Texas, (2) the Gulf Coast, (3) South Texas, (4) Far
West Texas, (5) the German Hill Country, (6) West Texas, (7) the
Panhandle, (8) North Texas, and (9) Central Texas. Each region
is characterized by distinctive historical, ethnic, and economic
influences.
LO 1.3 Analyze Texans’ political struggles over equal
rights and evaluate their success in Texas politics today
and their impact on the state’s political future. Texas
social conservatism inherited from the Old South traditionalistic
culture has resulted in resistance to cultural minorities’ demands
for social and political equality. In several instances, minorities
have succeeded in their struggles for equality by appealing to
the federal courts outside of the political control of Texas political
institutions.
Women were not legally equal to men in early Texas, and their
path to equality has been a winding and occasionally hesitant one.
Activists finally won the long battle for the right to vote in 1918. It
was not until 1972, however, that women won equal rights in real
estate, contracts, divorce, child custody, and property rights. The
judicial decision in Roe v. Wade that further clarified the right of
women to control their reproductive functions has remained at the
center of national controversy with the Supreme Court refining the
right to choose as recently as 2016.
African American Texans’ struggle for legal equality
reflected similar struggles being simultaneously waged in other
southern states. The battle to vote in the Democratic primary
and the right of admission to public accommodations and public
Review Questions
schools were settled only by national courts or congressional
intervention.
The Latino struggle in Texas was similar to that of African
Americans and was resolved only by national action. Several
Latino rights organizations were founded in Texas, and the
judicial decision in Hernandez v. Texas (1954) that established
the constitutional concept of a “class apart” became important
throughout the United States. The right to form labor unions occupied much of the Latino movement in the 1960s and 1970s.
LGBT Texans are now waging similar battles for legal
equality. Lawrence v. Texas (2003) gained national significance
by decriminalizing sexual activity between consenting persons
of the same biological sex. A high-profile series of battles for
LGBT equality is presently taking place in cities throughout the
state over the adoption of ordinances that extend protection
against discrimination to members of the LGBT community.
Projections of population growth and immigration predict a
shift in Texas’s population from an Anglo plurality to a Latino plurality by the end of the current decade. Increased political clout
27
can come with increased population, and Latinos could begin
to challenge the political and economic dominance of Anglos.
Regardless of the political outcome of population shifts, Texas is
becoming more diverse and now has an opportunity to build on
its already rich cultural pluralism.
LO 1.4 Apply what you have learned about Texas political culture and diversity. In 1986 President Ronald Reagan
signed bipartisan immigration reform legislation into law. It
allowed more than three million undocumented immigrants to
come out of the shadows and legalize their status. Thirty years
later, the country’s immigration system is once again broken, with
11 million undocumented immigrants presently in the country. A
majority of Americans want to find a way for these undocumented
immigrants (excluding those with serious criminal records) to
legalize their status while simultaneously insuring that the country gains better control over the immigration process in order to
avoid ever again having large numbers of undocumented immigrants residing in the United States.
Key Terms
bicultural, p. 11
conservative, p. 2
Creole, p. 10
demographics, p. 20
Ku Klux Klan (KKK), p. 16
liberal, p. 3
maquiladora, p. 11
Mestizo, p. 10
Metroplex, p. 13
North American Free
Trade Agreement
(NAFTA), p. 11
political culture, p. 2
ranchero culture, p. 10
The Valley, p. 10
white primary, p. 15
Review Questions
LO 1.1 Analyze the relationships among Texas political
culture, its politics, and its public policies.
• Describe the policy differences between the Texas
conservative and liberal ideologies.
• Discuss the most significant differences in ideologi-
cal self-identification between men and women, across
the state’s three largest ethnic/racial groups, among the
four generational cohorts to which most Texans living
today belong, and among the state’s largest counties.
• Show how Texans’ conservatism is reflected in the
state’s partisanship and public policies.
LO 1.2 Differentiate the attributes that describe the
major Texas regions.
• Briefly describe each of the state’s nine major cultural
regions. Does the description fit your home area?
• How do the state’s major cultural regions differ historically, economically, and ethnically/racially?
LO 1.3 Analyze Texans’ political struggles over
equal rights and evaluate their success in Texas
politics today and their impact on the state’s political
future.
• Describe the major developments in the struggle of
Texas women, African Americans, Latinos, and members of the state’s LGBT community to achieve social
and political equality. What cultural factors explain
the resistance to the social change that their struggles
eventually brought about?
• How will Texas’s population growth and its changing
demographics affect the state’s political landscape?
What challenges does a more diverse population present for policy makers?
28
1
Texas Political Culture and Diversity
Think Critically and Get Active!
Get involved and learn about your own cultural
heritage. Talk to your great-grandparents, grandparents,
parents, aunts, and uncles to learn what they know about
your culture and family history. Record as much oral history as you can about their personal lives, experiences,
and political memories as well as family traditions. You
may find this information invaluable in the future when
you talk to your own children, grandchildren, and greatgrandchildren about their culture.
Research the background and richness of your family
culture. Here are a few reliable sources:
• The Church of Jesus Christ of Latter-Day Saints:
www.familysearch.org
• Institute of Texan Cultures:
www.texancultures.com
• Texas State Library and Archives Commission:
www.tsl.state.tx.us
• Texas State Historical Association and Center for
Studies in Texas History: www.tshaonline.org
The Handbook of Texas Online (www.tshaonline.org/
handbook) is a great source for information on Texas history, culture, and geography. A project of the Texas State
Historical Association, it is an encyclopedia of all things
Texan. Use it to sketch the historical changes in the status of one or more of the groups discussed in the civil
rights section in this chapter. Then review census data
at www.census.gov and www.osd.texas.gov to evaluate their income, education, and quality of life in today’s
Texas. Quickly find information on your county or city
using the U.S. Census Bureau’s QuickFacts resource at
www.census.gov/quickfacts. Develop a better understanding of support for Democratic and Republican candidates across the state by reviewing electoral returns on
the Texas Secretary of State Elections Division website at
www.sos.state.tx.us/elections.
Broaden your cultural and political experiences.
Study groups that are different from your own to get a
perspective on the rich diversity of modern Texas political
life at representative websites.
• Engage conservative political views via the Empower
Texans website at www.empowertexans.com
(@EmpowerTexans) and liberal political perspectives at the Texas Observer website at
www.texasobserver.org (@TexasObserver). The
Texas Association of Business at www.txbiz.org
(@txbiz) advocates for policies to improve the business climate in Texas and keep the economy among
the strongest in the world, while the Center for Public Policy Priorities at www.forabettertexas.org
(@CPPP_TX) advocates for hardworking Texans and
their families, especially lower-income Texans.
• Check out two major Latino civil rights organiza-
tions, the League of United Latin American Citizens
(LULAC) at www.lulac.org (@LULAC) and the
Mexican American Legal Defense Fund (MALDEF)
at www.maldef.org (@MALDEF), as well as the
leading African American civil rights organization,
the National Association for the Advancement of
Colored People (NAACP), at www.naacp.org
(@NAACP), and the leading Asian American civil
rights organization, Asian Americans Advancing Justice (AAJC), at www.advancingjustice-aajc.org
(@AAJC_AAJC).
• Explore sites promoting women’s rights and the elec-
tion of women to public office, such as the National
Organization of Women (NOW) at www.now.org
(@NationalNow) and the National Women’s Political
Caucus at www.nwpc.org (@NWPCNational), and
those working to elect more women to public office
in Texas, such as Annie’s List at www.annieslist.com
(@AnniesListTX) and the Texas Federation of
Republican Women at www.tfrw.org (@TFRW).
• Some prominent groups supporting LGBT rights
and promoting the election of members of the
LGBT community to public office are Equality
Texas at www.equalitytexas.org (@EqualityTexas)
and The Gay and Lesbian Victory Fund at
www.victoryfund.org (@VictoryFund).
★ PRQ
How much respect do you owe people
whose political or cultural identity or
ethnic/racial or religious background
differ from your own? Evaluate the
use of labels that members of different groups might find offensive.
Texas in the Federal
System
12
2
Although it is illegal for a state to secede, some Texans use it as a slogan to express their displeasure with the growing
power of the national government. In this chapter, you will explore the changing relationship between the national
government and the state.
AP Images/Harry Cabluck
Learning Objectives
LO 2.1 Differentiate among unitary, confederal, and federal systems of government.
LO 2.2 Distinguish among the types of powers in our federal system, and explain dual and cooperative federalism within the context of the evolution of federalism in the United States.
LO 2.3 Analyze Texas’s relationship with the federal government and the prominent role the
state has played in the national debate over coercive federalism.
LO 2.4 Apply what you have learned about Texas in the federal system.
30
2
Texas in the Federal System
T
he relationship between the Texas state government and the U.S. federal government
has been tense in recent years. The members of the Texas state executive branch, including the governor, lieutenant governor, and attorney general, have increasingly viewed the
federal government as encroaching on the state’s sovereignty, while the federal government,
especially under former President Barack Obama between 2009 and 2017, has attempted to
enforce new laws, rules, and regulations in the state. From health care reform to voting rights
to environmental policy, Texas and the federal government have disagreed on the proper role
of each other in the creation, enactment, and enforcement of public policy. Tension between
the federal government and the states is nothing new and has constantly redefined our concepts of federalism. Today’s conflicts between the two levels of government may once again
change our understanding of the federal system.
We begin by defining federalism and discussing how the concept has evolved over time in
the United States. We then turn our attention to Texas and how federalism specifically affects
the state’s policies, politics, and society.
What Is Federalism?
LO 2.1 Differentiate among unitary, confederal, and federal systems
of government.
Governmental systems are often classified into three basic types based on the degree of centralization present in their constitutions: unitary, confederal, and federal. The United States
was the first country in the world to employ a federal system of government.
Unitary Systems
unitary system
A system of government in which constitutional authority
rests with a national or
central government;
all regional or local
governments are subordinate to the central
government.
An overwhelming majority of the world’s countries are governed by a unitary system, a system of government in which constitutional authority rests with a national or central government; all regional or local governments are subordinate to the central government. Unitary
governments may be democratic like those in Costa Rica, France, and Japan or nondemocratic like those in China, Cuba, and Saudi Arabia. They are all considered to be unitary
governments simply because the constitution vests the power to govern the entire nation in a
single central government.
Unitary governments frequently choose to create regional and local governments for
administrative purposes; these regional and local governments are allowed varying latitude
in the design and implementation of public policies across the world’s unitary systems. However, in the end, these subnational governments remain creations of the national government
and have only those powers the national government chooses to give them—powers that the
national government is empowered to take away at its discretion.
Confederal Systems
confederal system
A system of government in which member
states or regional
governments have
all authority, and any
central government
has only the power
that state governments
choose to delegate
to it.
As a consequence of their negative experience with unitary rule under the British, following independence Americans first adopted a confederal system of government, a system that quickly proved to be unworkable. A confederal system is one in which member
states or regional governments have all authority, and any central government has only
the power that state governments choose to delegate to it. This system is also known as a
confederation.
Under the Articles of Confederation drafted by the Continental Congress following independence in 1776, all power was placed in the hands of the state governments, and the central
government had only the power that the states chose to give it. The best example of a modernday confederation is the European Union (EU). In 2016 the EU contained 28 independent
The U.S. Constitution and Federalism
31
nation-states stretching from Ireland in the west to Romania in the east, and from Finland in
the north to the Mediterranean island-state of Cyprus in the south, with four more nations on
the road to EU membership, and the United Kingdom exiting after a 2016 referendum.
Federal Systems
The country’s failed experiment with a confederal form
Did You Know? Prior to its short tenure as
of government ended with the U.S. Constitutional
an independent nation (1836–1846) and current status
Convention in 1787. In that year, the Americans meetas a U.S. state (since 1846), Texas belonged to another
ing in Philadelphia invented an entirely new form of
federal system, the United Mexican States (1824–
government—a federal system. Federalism represents
1835), as the northern half of the state of Coahuila y
Texas. Mexico’s shift in 1835 from a federal to a unitary
an attempt to combine the advantages of a unitary govsystem of government under Mexican President Antoernment (national unity and uniformity where they are
nio López de Santa Anna sparked a revolt against the
necessary) with the advantages of a confederacy (local
Santa Anna dictatorship in Texas, a revolution that culcontrol and policy diversity from state to state where
minated in the state’s independence in 1836.
possible).
Federal states can be either democratic, as in Argentina, Germany, and the United States, or nondemocratic,
as in Ethiopia, Pakistan, and Russia. The concept of federalism has flourished in many places
throughout the world, especially in nations that encompass a vast territory and/or possess
a large or diverse population. Today, in addition to the United States, federal systems are
employed by many of the world’s largest (in terms of population and/or territory) democracies, including Argentina, Australia, Brazil, Canada, Germany, India, and Mexico.
A federal system of government is one in which governmental power is divided and
federal system
A system of governshared between a national or central government and state or regional governments. Although
ment in which govoriginal definitions of federalism considered only two levels of government, the concept can
ernmental power is
easily be extended to encompass multiple levels of government. In the United States, govdivided and shared
ernmental power is shared among the national government, state governments, and local
between a national or
central government
governments.
and state or regional
governments.
The U.S. Constitution and Federalism
LO 2.2 Distinguish among the types of powers in our federal system, and
explain dual and cooperative federalism within the context of the
evolution of federalism in the United States.
When the framers of the U.S. Constitution set out to revise the Articles of Confederation
in 1787, they opted to give more authority to the central government. One of their critical
challenges was the creation of a representative government for a large nation with a diverse
population. The Founding Fathers wanted to achieve a balance between parochial interests
and broader national concerns. The solution to this challenge was the federal system. James
Madison wrote in Federalist 10:
By enlarging too much the number of electors, you render the representatives too little
acquainted with all their local circumstances and lesser interests; as by reducing it too
much, you render him unduly attached to these, and too little fit to comprehend and
pursue great and national objects. The federal Constitution forms a happy combination
in this respect; the great and aggregate interests being referred to the national, the local
and particular to the State legislatures.1
The federal system that James Madison and the other Founding Fathers drafted was designed
to create an optimal balance between local and national interests and concerns.
32
2 Texas in the Federal System
delegated powers
Those powers that the
Constitution gives to
the national government. These include
those enumerated
powers found in
Article I, Section 8 of
the U.S. Constitution
as well as a few other
powers that have
evolved over time.
expressed powers
Those powers that
are clearly listed in
Article I, Section 8 of
the U.S. Constitution.
implied powers
Those delegated powers that are assumed
to exist in order for the
federal government to
perform the functions
that are expressly delegated. These powers
are granted by the
necessary and proper
clause in Article I,
Section 8 of the U.S.
Constitution.
inherent powers
Those delegated powers that come with an
office or position—
generally, the executive branch. Although
the U.S. Constitution
does not clearly specify powers granted to
the executive branch,
over time, inherent
powers have evolved
as part of the powers
needed to perform the
functions of the executive branch.
reserved powers
Those powers that
belong to the states.
The legitimacy of these
powers comes from
the Tenth Amendment.
concurrent powers
Those powers shared
by the national government and the states.
Over the course of our nation’s history, the shift in power has been from a form of government in which the states reserved many of their powers to one in which the federal government has become more dominant. For every action, there is a reaction, and this growing
power of the federal government has caused an increased level of activism by citizens who
believe the pendulum of power in the country has swung too far to the federal government
side. These individuals want at the minimum to avoid any further erosion of state autonomy
and at the maximum to restore a greater level of power and authority to the 50 state governments. Over the past dozen years, perhaps nowhere in the country has this pushback against
the federal government been more visible and vocal than in Texas, where many of the state’s
most powerful and high-profile politicians have been actively working to shift power away
from the federal government and toward the states. (See the Politics in Practice feature later
in this chapter.)
Types of Powers in Our Federal System
In the U.S. federal system, there are three types of powers—delegated, reserved, and concurrent. Delegated powers are those that the Constitution gives to the national government. These include those enumerated powers found in Article I, Section 8 of the U.S.
Constitution as well as a few other powers that have evolved over time. Note that there
are three types of delegated powers: expressed, implied, and inherent. Expressed powers
are those powers that are clearly listed in Article I, Section 8 of the U.S. Constitution.
Implied powers are those delegated powers that are assumed to exist in order for the
federal government to perform the functions that are expressly delegated. These powers are granted by the necessary and proper clause in Article I, Section 8 of the U.S.
Constitution. Inherent powers are those delegated powers that come with an office
or position—generally, the executive branch. Although the U.S. Constitution does not
clearly specify these powers granted to the executive branch, over time, inherent powers
have evolved as powers found to be needed to perform the functions of the executive
branch.
A second group of powers in the federal system is known as reserved powers. Reserved
powers are those powers that belong to the states. The legitimacy of these powers comes from
the Tenth Amendment. Finally, there are concurrent powers, which are those powers shared
by the national government and the states. Examples of these delegated, reserved, and concurrent powers are listed in Figure 2.1.
The U.S. Constitution addresses the sharing of power between the national and state
governments in various sections. Article I, Section 8, for instance, lists the enumerated powers “expressly” granted to Congress by the Constitution. Article VI includes the supremacy
clause, which provides guidance on how to resolve a conflict arising between a federal law
and a state law.
In the event that conflict should arise between federal and state law, the supremacy clause
states that the U.S. Constitution, as well as laws and treaties created in accordance with the
U.S. Constitution, supersede state and local laws. That is, when federal law and state law are
in conflict, the federal law must be followed. The Tenth Amendment to the U.S. Constitution also helps define the balance of power in the federal system. The Tenth Amendment
is the section of the U.S. Constitution that reserves powers to the states. It reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.” Some read the
Tenth Amendment as limiting the federal government, shifting greater power to the states.
The Fourteenth Amendment also affects the balance of power in the federal system. It was
adopted following the Civil War and dramatically improved the protection of civil rights and
equality for all Americans.
The U.S. Constitution and Federalism
FIGURE 2.1 National, State, and Concurrent Powers
This figure shows some examples of delegated national powers, reserved state
powers, and those that are shared between the two.
Delegated
Powers of
the National
Government
National Powers
Declare war
Raise armies
Enter into
treaties
Coin money
Regulate
international
and interstate
commerce
★ CTQ
Concurrent
Powers
Concurrent Powers
Levy taxes
Borrow money
Make and
enforce the law
Establish courts
Charter banks
Reserved
Powers
of the States
State Powers
Conduct
elections
Regulate
alcoholic
beverages
Ratify U.S.
constitutional
amendments
Establish
local governments
Exercise state
police powers
33
supremacy clause
States that the U.S.
Constitution, as well
as laws and treaties
created in accordance
with the U.S. Constitution, supersede state
and local laws.
Tenth Amendment
Section of the U.S.
Constitution that
reserves powers to
the states. It reads as
follows: “The powers not delegated to
the United States by
the Constitution, nor
prohibited by it to the
States, are reserved to
the States respectively,
or to the people.”
Give examples of how the national government has used its
power to tax and to regulate commerce to expand its scope.
Source: Cengage Learning
The Powers of the National Government
Conflicts between the national government and states have arisen on a number of occasions,
in part because of different understandings of two sections of the U.S. Constitution: Article I,
Section 8 and the Tenth Amendment. Article I, Section 8 of the U.S. Constitution enumerates the powers granted to Congress, including the power to regulate interstate commerce.
It is this commerce clause in Article I that has been used to justify several broad national
government actions. For example, the U. S. Congress used the commerce clause to criminalize the production and use of medicinal marijuana even in states where the growing and use
of homegrown marijuana for medicinal purposes was legal. The U.S. Supreme Court upheld
this use of the commerce clause in its 2005 decision Gonzales v. Raich. Other major powers
granted to Congress under Article I, Section 8 include collecting taxes, providing for the
common defense, borrowing money, printing money (and determining its value), declaring
war, and regulating immigration and naturalization.
More important for a discussion of federalism, however, is the last clause in the list: “To
make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.”2 This is known as the necessary
and proper clause, or the elastic clause, of the U.S. Constitution, which was given a very
expansive meaning early in the nation’s history.
commerce clause
An enumerated power
in Article I, Section 8 of
the U.S. Constitution
that gives Congress
the power to regulate
commerce between
the states.
necessary and proper
clause
The last clause in
Article I, Section 8 of
the U.S. Constitution;
also known as the elastic clause, which was
given a very expansive
meaning early in the
nation’s history.
34
2 Texas in the Federal System
Implied Powers of the National Government
In 1819, the U.S. Supreme Court expanded the power of the U.S. Congress. In McCulloch v.
Maryland, the state of Maryland, seeking to limit competition with banks chartered by the
state of Maryland, had attempted to tax the Second Bank of the United States, a bank created by the federal government. The head of the Baltimore branch of the Second Bank of the
United States refused to pay the tax. The state of Maryland argued that the U.S. Constitution did not give the national government the power to create a national bank, and thus the
Bank of the United States was unconstitutional. Chief Justice John Marshall argued that,
although it was true that the creation of a bank was not an enumerated power under Article I,
Section 8, the supremacy clause of the Constitution, along with the necessary and proper
clause, gave Congress authority to create the bank. Justice Marshall wrote, “The Government
of the Union, though limited in its powers, is supreme within its sphere of action, and its
laws, when made in pursuance of the Constitution, form the supreme law of the land.”3 The
Court further concluded that if the end or goal is legitimate, then the act is constitutional. If
Congress has the power to regulate commerce, for instance, then Congress can enact legislation that will help it carry out that end.4 McCulloch v. Maryland broadly expanded the powers
of the federal government.
The Early View: Dual Federalism and the
Tenth Amendment
dual federalism
The understanding
that the federal government and state
governments are both
sovereign within their
sphere of influence.
Even with the broad powers granted to the federal government by McCulloch v. Maryland,
the relationship between the federal government and state governments in its aftermath was
one that left clear demarcations between the two levels of government. Scholars have dubbed
the type of federalism that existed during the nineteenth century and the early part of the
twentieth century as dual federalism. The dominant concept of federalism until the 1930s,
dual federalism is characterized by four features that indicate demarcations between the states
and the federal government.
1. The national government is one of enumerated powers only.
2. The purposes which the national government may constitutionally promote are few.
3. Within their respective spheres, the two centers of government are “sovereign” and hence
“equal.”
4. The relation of the two centers with each other is one of tension rather than collaboration.5
These four characteristics were postulated by Edward S. Corwin in his 1950 eulogy to the
concept of dual federalism.6 Corwin argued that “what was once vaunted as a Constitution
of Rights, both State and private, has been replaced by a Constitution of Powers.” 7 Although
this claim may be debated, it was clear that a new understanding of the relationship between
federal and state governments was under way.
The Tenth Amendment was the bulwark for dual federalism. It ensured that states like
Texas retained those powers that were not given to the federal government. The Tenth
Amendment was written to limit the powers of the national government to those stipulated
in Article I, Section 8. But as early as 1789, supporters of the federal system were endeavoring
to weaken the Tenth Amendment. In the process of writing the Tenth Amendment, Representative Thomas Tudor Tucker proposed adding the term expressly so that the amendment
would read, “The powers not expressly delegated to the United States.”8 He believed that
adding the term would limit the powers of the federal government to those expressly stated in
the Constitution. James Madison and others argued against the proposal, and it was rejected.
As a result, the Tenth Amendment was left to be interpreted as limiting national powers
either a little or a lot. After the replacement of Chief Justice John Marshall with Chief Justice
Roger Taney, the Supreme Court began to rein in the national government. When faced with
The U.S. Constitution and Federalism
35
a case that pitted the federal government’s power to regulate commerce against the states’
internal police power, the Supreme Court would side with the states.9 This would be the
dominant concept of federalism until the 1930s.
The Development of Cooperative Federalism
The exclusion of the term expressly made it much easier for the national government to expand
its powers, but a new set of national and global challenges served as the trigger that contributed to the shift in power from the state governments to the federal government. Two
world wars, the Great Depression, advances in technology, the civil rights movement, and the
Cold War with the Soviet Union contributed to a greater need for centralizing power. Edward
Corwin summarizes, “The Federal System has shifted base in the direction of a consolidated
national power, while within the National Government itself an increased flow of power in
the direction of the President has ensued.”10
Corwin’s concept of dual federalism would be replaced by cooperative federalism, a
relationship in which “the National Government and the States are mutually complementary parts of a single government mechanism all of whose powers are intended to realize the
current purposes of government according to their applicability to the problem in hand.”11
Cooperative federalism used the power of the national government to encourage the states to
pursue certain public policy goals. When the states cooperated, they would receive matching
funds or additional assistance from the national government. When the states did not cooperate, funds could be withheld from the states.
The development of the concept of cooperative federalism was largely the result of a vast
expansion of federal grants-in-aid. The evolution of federal grants to state and local governments has a long and controversial history. Although some grants from the national government to the states began as early as 1785, the adoption of the federal income tax in 1913
drastically altered the financial relationship between the national and state governments by
making possible extensive federal aid to state and local governments.
The Great Depression of the 1930s brought with it a series of financial problems more
severe than the state and local governments had previously experienced. Increased demand
for state and local services at a time when revenues were rapidly declining stimulated a long
series of New Deal grant-in-aid programs, ranging from welfare to public health and unemployment insurance.
Most of these early grant-in-aid programs were categorical grants. Under such aid programs, Congress appropriates funds for a specific purpose and sets up a formula for their
distribution. Certain conditions are attached to these grant programs:
1. The receiving government agrees to match the federal money with its own, at a ratio fixed
by law.
2. The receiving government administers the program. For example, federal funds are made
available for Medicaid, but it is the state that actually pays client benefits.
3. The receiving government must meet minimum standards set by federal law. Sometimes
additional conditions are attached to categorical grants, such as regional planning and
accounting requirements.
Most federal aid, however, now takes the form of block grants that specify general purposes such as job training or community development but allow the state or local government
to determine precisely how the money should be spent. Conditions may also be established
for receipt of block grants, but state and local governments have greater administrative flexibility than with categorical grants. Federal transportation, welfare, and many other grants
have been reformed to allow for significant devolution—that is, the attempt to enhance the
power of state or local governments, especially by replacing relatively restrictive categorical
grants-in-aid with more flexible block grants.
cooperative
federalism
A relationship where
“the National Government and the
States are mutually
complementary parts
of a single government mechanism all
of whose powers are
intended to realize the
current purposes of
government according
to their applicability to
the problem in hand.”13
categorical grants
Federal aid to state
or local governments
for specific purposes,
granted under restrictive conditions and
often requiring matching funds from the
receiving government.
block grants
Federal grants to state
or local governments
for more general purposes and with fewer
restrictions than categorical grants.
devolution
The attempt to
enhance the power of
state or local governments, especially by
replacing relatively
restrictive categorical grants-in-aid with
more flexible block
grants.
36
2 Texas in the Federal System
Civil Rights versus States’ Rights
Screen Shot
Heated civil rights battles developed during the nation’s transition from dual federalism to
cooperative federalism in the middle of the past century. During this period, states, especially
southern states, claimed the federal government was encroaching on states’ rights, and no
public policy area garnered more opposition from the southern states than civil rights issues.
During the period of dual federalism, the U.S. Supreme Court created the separate but
separate but equal
doctrine
equal doctrine in Plessy v. Ferguson (1896). The Court used a novel interpretation of the
Doctrine that resulted
Fourteenth Amendment to protect “states’ rights” when it held that segregation did not viofrom the Supreme
late the constitutional requirement that no state shall deny any person the equal protection of
Court ruling in Plessy v.
the laws. It held that state and local governments could pass laws requiring racial segregation
Ferguson that legalized segregation.
because, as long as physical facilities were equal for both races, African Americans were as
separate from whites as whites were from African Americans. This interpretation ignored the
intent in segregation laws to communicate a sense of social inferiority to African Americans
by making it a crime for them to associate with whites. The Court also neglected the fact that
the separate African American facilities were either clearly inferior to those enjoyed by whites
or simply nonexistent.
The Plessy decision allowed continued discrimination against African Americans, and the
decision’s
impact was felt throughout the South. In its aftermath, states enacted Jim Crow
Jim Crow laws
laws, which mandated racial segregation in almost every aspect of life.
State and local laws
that mandated racial
After World War II, the separate but equal doctrine would slowly be weakened, and
segregation in almost
Texas
contributed to this weakening by providing the setting for the Supreme Court case of
every aspect of life.
Sweatt v. Painter (see Chapter 1). After graduating from Yates High School in Houston and
Wiley College in Marshall, Texas, Heman Marion Sweatt, an African American student,
hoped to go to law school in Texas. But at the time, the University of Texas at Austin law
school did not admit African Americans. African American students from Texas who wanted
to attend law school were told to go to schools out of state. The Supreme Court ruled that,
in shifting its responsibilities to other states, the State of Texas was not providing separate
accommodations—a requirement under the doctrine of separate but equal.
Sweatt v. Painter led to the creation of what are
IMAGE 2.1 TSU’s Thurgood Marshall School of
now Texas Southern University (TSU) and TSU’s
Law annually awards more JD degrees to members of
Thurgood Marshall School of Law (see Image 2.1).
ethnic/racial groups that are under-represented within
Although graduates of the Thurgood Marshall School
the membership of the State Bar of Texas than any
of Law represent only 3 percent of the membership of
other law school in Texas.
the Texas state bar, they currently account for 13 percent of Texas attorneys who are members of ethnic or
racial minorities.13 Perhaps more significantly, Sweatt
helped to further weaken the doctrine of separate but
equal, paving the way for Brown v. Board of Education
in 1954, which eventually reversed Plessy v. Ferguson.
Brown v. Board of Education would lead to the desegregation of schools as we discussed in Chapter 1. The
Twenty-Fourth Amendment (which outlawed poll taxes),
the Civil Rights Act of 1964, the Voting Rights Act
of 1965, and many other laws that promoted equality
would follow. The white political leadership in southern
states generally saw such legislation as an encroachment
on their sovereignty—or states’ rights.
★ CTQ How does Texas society benefit from
The Voting Rights Act of 1965 and its extensions
having more African American and
in
1970,
1975, 1982, and 2006 required, under the
Latino lawyers?
law’s Section 5, that a small number of states obtain
The U.S. Constitution and Federalism
37
preclearance
approval (referred to as preclearance) from either the U.S. Department of Justice or the U.S.
Any administrative or
District Court for the District of Columbia for any election law changes. Initially, six southlegislative change to
ern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia) were
the rules governing
included, along with selected counties and other local political districts in other states. In
elections in covered
states must be submit1975, Alaska, Arizona, and Texas were added to this list when the Voting Rights Act (VRA)
ted for preapproval to
was expanded to include the protection of linguistic minorities (Asian Americans, Latinos,
either the U.S. Departand Native Americans) in addition to racial minorities (African Americans).
ment of Justice or the
Conservatives have long argued that the VRA violated the Tenth Amendment of the U.S.
U.S. District Court
for the District of
Constitution by singling out a small number of states, one being Texas, along with selected
Columbia.
political subdivisions in other states for additional scrutiny and legal requirements under
its Section 5. Furthermore, they objected to the formula
used to determine which states and jurisdictions were
required to seek preclearance, because the formula was
Did You Know? Texas was not included
based on electoral results and legislation from the 1960s
among the original six states required to seek preand early 1970s, which they claimed did not accurately
clearance in 1965 because the VRA’s architect, Presireflect present-day conditions.
dent Lyndon Baines Johnson (LBJ), did not want his
home state’s reputation tarnished by being placed
In 2013, the U.S. Supreme Court agreed with Alaalongside states so strongly associated with racial
bama (where Shelby County is located), Texas, and other
discrimination and oppression as Alabama and
states in Shelby County v. Holder that the criteria (located
Mississippi.14
in Section 4 of the VRA) under which states were
included in the preclearance group were out of date and
needed to be updated in order for Section 5 to be applied.
The Supreme Court did not find Section 5 to be unconstitutional, but until Congress develops a new formula for placing states and political subdivisions under the preclearance requirements (or the Supreme Court, with a change in membership, at some point overturns the
Shelby ruling), Section 5 will be inoperative.
Controversy erupted after the Supreme Court’s Shelby decision was announced. Some
Texans were upset that the decision would allow Texas to implement its 2011 voter photo ID
legislation, which a district court had ruled would depress minority voter turnout. The same
district court had ruled that the redistricting plans passed by the Republican-controlled Texas
legislature in 2011 discriminated against minorities, and opponents of the Shelby decision
feared that such practices in the future might go unchallenged. Many Democrats claimed
that the passage of these discriminatory laws is evidence that the VRA is still needed in states
like Texas. Most Republicans argued that these laws are not discriminatory; they are simply
efforts to prevent voter fraud and engage in entirely legal partisan gerrymandering.
Texas’s controversial voter ID law, which was denied preclearance in 2012 because it would
have a disproportionately negative effect on Latino and African American voters, went into
effect in 2013 when the Shelby decision relieved Texas from the preclearance requirement.
Opponents continued to challenge the law, and in 2016 the United States Fifth Circuit Court
of Appeals ruled it had a discriminatory impact. As part of an interim settlement for 2016,
Texas agreed to accept affidavits of citizenship and alternative (non-photo) forms of proof of
residency in addition to the seven forms of state approved photo identification.
While Section 4 remains unconstitutional, many Democrats have looked to Section 3
of the VRA to place Texas and other states back under preclearance. Section 3 provides a
vehicle for voting rights advocates to have a state or other political subdivision placed under
Section 5 (known as “bailing in”) if they can prove in court that the jurisdiction in question
has engaged in intentional discrimination against ethnic or racial minority voters. Because
this type of overt discrimination is difficult to prove, these efforts represent the legal equivalent of a “Hail Mary pass,” but at present they represent one of the most viable options available to these advocates.
38
2
Texas in the Federal System
Texas and the Federal System
LO 2.3 Analyze Texas’s relationship with the federal government and the
prominent role the state has played in the national debate over
coercive federalism.
Some Texans interpret support for states’ rights (or state sovereignty) as an effort to thwart
civil rights for ethnic and racial minorities. However, other Texans see states’ rights as reflecting a genuine concern with a growing federal government that they believe has simply become
too large and powerful and now carries out functions that states could perform better—or
that individuals can or should do for themselves. They are especially concerned with the coercive power of the federal government over both state governments and individuals.
So far we have been looking at the U.S. Constitution and how the national political and
legal climates have affected the relative powers of the national and state governments. Now
we will look at federalism from a Lone Star State perspective—at how the national government’s powers have affected the state, at the role played by the state in our federal system, and
at how Texas political leaders have coped with and reacted to the changing nature of U.S.
federalism.
Coercive Federalism and Texas
coercive federalism
A relationship between
the national government and states in
which the former
directs the states on
policies they must
undertake.
Many Texans would argue that a shift away from cooperative federalism has been under way
since the late 1970s. This new form of federalism has been referred to as coercive federalism.
Coercive federalism is defined as a relationship between the national government and states
in which the former directs the states on policies they must undertake. In this shift to coercive federalism, the federal government has centralized more power and has increasingly
obstructed the states when they attempt to pursue policies with which the federal government
does not agree. Such encroachment on states has not been ideologically one-sided. Federalism
scholar John Kinkaid writes, “Liberals, lacking revenue for major new programs, and conservatives, lacking public support for major reductions in equity programs, switched from fiscal
to regulatory tools.”15 Because neither liberals nor conservatives had the political support to
expand or contract programs that promoted equity, lawmakers in Congress and the White
House opted to enact new rules.
A classic example of federal encroachment using regulatory mechanisms was the passage
of the National Minimum Drinking Age Act of 1984. The law required all states to set their
minimum drinking age to at least 21 or run the risk of the federal government’s reducing their
federal highway construction funding by 10 percent (which in 2015 would have represented
a cut of $333 million in Texas), a reduction that would have a dramatic adverse impact on
the state’s infrastructure. As a result of the passage of this legislation, the approximately twofifths of the states that were not in compliance raised their minimum drinking age to 21,
including Texas, where it was increased from 19 to 21.
During his 14-year tenure in office between 2000 and 2015, former Governor Rick Perry
frequently invoked the Tenth Amendment. Perry argued that the federal government has
increasingly taken over more activities that were once the purview of state governments.
A statement made by Perry during his final gubernatorial campaign nicely summarizes the
current philosophy of a majority of Texas Republicans regarding the issue of state sovereignty:
States are best positioned to deal with state issues, a fact the founding fathers had in
mind when they included the 10th Amendment in the Bill of Rights. Over the years,
that right has been clouded by ongoing federal encroachments that are reflected in
a recent series of attempts by Washington to seize even more control over numerous
Texas programs.16
Texas and the Federal System
Former Governor Perry and his successor, Governor Greg Abbott, both consider the
Affordable Care Act of 2010, several Environmental Protection Agency regulations, cap-andtrade legislation efforts, and VRA enforcement as recent examples of the national government placing undue burdens on Texas.
Supporters of federal efforts see the national government as requiring Texas to do what it
has been reluctant to do, such as protecting the environment and public health. For instance,
supporters of federal involvement question the Texas Commission on Environmental
Quality’s (TCEQ) efforts to enforce air and water quality standards. If the state does not
meet air quality standards as called for by the federal government, then the state could lose
federal funds for transportation projects.
Federal Grants-in-Aid in Texas
Grants from the federal government constitute the second largest source of revenue for the
state of Texas after state taxes, and the percentage of the state’s revenue provided by the federal
government has grown in recent decades. In 1978, about a quarter of the state’s revenue was
supplied by the federal government. During the worst of the Great Recession, the percentage
of state revenue accounted for by federal funds briefly exceeded 40 percent, reaching a peak
of 41 percent in 2011 as a result of the federal government’s stimulus efforts, before dropping
back to pre-recession levels, settling at 33 percent in 2014 and 34 percent in 2015. Figure 2.2
shows the percentage of Texas revenue coming from the federal government between 1978
and 2015. This growth can be explained in large part by the formulas the federal government
uses to calculate need in a state. Texas’s rapidly expanding population, combined with a comparatively large low-income population and a rapid rise in the number of senior citizens living
in the state, has contributed to this growth.
FIGURE 2.2 Percentage of Texas Revenue Coming from the Federal
Government (1978–2015)
This figure shows that Texas, like most states, has become increasingly reliant on
federal funding to finance state programs in the areas of education, health, and
transportation.
40
30
20
10
1978
★ CTQ
1988
1998
2008
2015
Is Texas’s growing reliance over the past four decades on federal funds to
support state government operations a positive or negative development
for the state?
Source: Cengage Learning
39
40
2 Texas in the Federal System
Indirect Federal Benefits: U.S. Military Bases in Texas
There are more active duty United States Air Force, Army, Marine Corps, and Navy personnel
and civilian military workers in Texas than in every other state except California and Virginia.
(Virginia’s second place status is a consequence of its proximity to the nation’s capital.) As of
2015 there were 118,000 active duty military personnel and 60,000 civilian defense employees
at U.S. military bases in Texas.17 The state’s more than one dozen major and minor installations (see Figure 2.3), with their thousands of active duty troops and civilian workers, provide
FIGURE 2.3 Major U.S. Military Installations in Texas in 2016
This figure shows the location of the principal United States Armed Forces installations in the state of Texas. The bases are spread across the state from the Red River
Army Depot in Texarkana near the Texas–Louisiana border to Fort Bliss in El Paso
near the Texas–New Mexico border.
Sheppard
Air Force Base
Red River
Army Depot
Naval Air Station
Fort Worth Joint Reserve Base
Dyess
Air Force Base
Fort Bliss
Fort Hood
Goodfellow
Air Force Base
Fort Sam Houston
Laughlin
Air Force Base
Lackland
Air Force Base
Randolph
Air Force Base
Military Installations
Joint Base San Antonio
★ CTQ
Naval Air
Station
Kingsville
Naval Air Station
Corpus Christi
Corpus Christi
Army Depot
Which Texas communities are most vulnerable to a significant economic downturn
resulting from the closure of their local military base or bases?
Source: Cengage Learning
41
vital jobs and economic benefits to their communities. They represent an indirect way that
the federal government, through its decisions on military staffing and spending, affects the
economic health of Texas, annually contributing close to $150 billion to the state’s economy.18
The largest three concentrations of soldiers and government civilian defense employees in
Texas are in the San Antonio, Killeen–Temple, and El Paso metro areas. Joint Base San Antonio,
comprising the Army’s Fort Sam Houston, Lackland Air Force Base, and Randolph Air Force
Base, leads the pack among the Texas installations. Combined, these three San Antonio installations have 31,000 active duty and 24,000 civilian personnel. Joint Base San Antonio is followed in numbers by the Army’s Fort Hood in Killeen, with 40,000 active duty troops and
7,000 civilian employees. Among the units stationed at
Fort Hood is the legendary 1st Cavalry Division. Third
IMAGE 2.2 Texas’s Army, Air Force, and Navy bases
directly and indirectly create jobs that benefit commuin size is the Army’s Fort Bliss in El Paso, with 27,000
nities throughout the state.
active duty troops and 6,000 civilian workers, which
counts among its many units the 1st Armored Division.
The impact of Fort Hood and Fort Bliss on the economic
prosperity of their communities is more substantial than
that of Joint Base San Antonio (which is still quite powerful), because the Killeen–Temple and El Paso metro
areas where they are located have 430,000 and 830,000
residents, respectively, compared to the 2.4 million residents of the San Antonio metro area.
Military bases and the economic benefits they generate are tightly linked to the level of prosperity of El
Paso, Killeen–Temple, and San Antonio, as well as a half
dozen other communities across the state: Abilene (Dyess
Air Force Base), Corpus Christi–Kingsville (Corpus
Christi Army Depot, Naval Air Station Corpus Christi,
Naval Air Station Kingsville), Del Rio (Laughlin Air
Force Base), San Angelo (Goodfellow Air Force Base),
Texarkana (Red River Army Depot), and Wichita Falls
(Sheppard Air Force Base). At the same time, two of the state’s four largest metro areas, Austin
and Houston, have no major military installation, and Dallas–Fort Worth (DFW) has only
the relatively small (especially in the context of the 7.0 million person DFW Metroplex) Naval
Air Station–Joint Reserve Base Fort Worth, with a combined active duty and civilian personnel
total of only 1,700.
Since 1988, the United States federal government has carried out five rounds of its Base
Realignment and Closure (BRAC) process. In the most recent round (2005), two Texas military bases—Naval Air Station Ingleside across the bay from Corpus Christi and Brooks Air
Force Base in San Antonio—were BRAC casualties; the Red River Army Depot was also
slated for closure, only to be rescued by then–U.S. Senator Kay Bailey Hutchison, who had
previously come to the depot’s rescue during the 1995 BRAC round. Another BRAC round
is expected before the end of the decade, at which time several Texas bases could find themselves vulnerable to closure.
Unfunded Mandates
Unfunded mandates are obligations the federal government imposes on state governments
while providing little or no funding to pay for the mandated activities. Even after enactment of the Unfunded Mandates Reform Act of 1995 during the administration of President
Bill Clinton, the federal government has found ways of getting around the law. Loopholes
and exemptions have made it possible for Congress to obligate Texas and other states to
unfunded mandates
Obligations the federal
government imposes
on state governments
while providing little to
no funds to pay for the
mandated activities.
Mark P. Jones
Texas and the Federal System
42
2 Texas in the Federal System
implement and pay for certain policies or risk losing federal funds. Former Governor Perry
was especially critical of unfunded mandates, even criticizing President George W. Bush’s No
Child Left Behind Act for forcing the states to make changes to their educational systems
without providing the federal funds needed to implement the program. Unfunded mandates
allow elected officials to take credit for passing legislation while avoiding the hard and generally unpopular work of raising the revenue to fund the program created by the legislation.
The federal government is not the only level of government that adopts legislation containing unfunded mandates. The State of Texas also has created a fair number of unfunded
mandates, requiring local governments and other public institutions, such as community colleges and universities, to take certain actions without providing these entities with adequate
funds to implement the requirements.
One example of an unfunded mandate is the Hazlewood Legacy Act. In 2009, the Texas
Legislature significantly expanded the 1929 Hazlewood Act. The Hazlewood Act exempted
qualified veterans and dependent children of disabled or deceased veterans from paying
tuition and fees at Texas public colleges and universities up to a maximum of 150 credit hours.
The 2009 Hazlewood Legacy Act allowed veterans to transfer their credit hours to their
dependent children (under the age of 26), which substantially increased the number of students benefiting from this measure. As a result of the expansion, the cost of the program
(borne overwhelmingly by Texas public colleges and universities) increased from $25 million
in 2009 to $169 million in 2014.19 The cost is projected to be as high as $379 million by 2019.
This estimate is based on the assumption that eligibility remains restricted to individuals who
were Texas residents at the time of their enlistment. A 2015 court ruling, which is presently in
the appeal process, concluded that, at least in the case of one specific student, Texas cannot
deny a resident veteran benefits under the Hazlewood Act even if the veteran was not a Texas
resident at the time of enlistment. If this ruling is ultimately upheld by the U.S. Supreme
Court and applied to other students, the cost of the Hazlewood Act could potentially surpass
$2 billion by the end of the decade.20
Although higher education leaders widely agreed with the spirit of the expansion, they
complained that it represented an unfunded mandate, in which the Texas Legislature significantly expanded the number of students attending the schools (for free) without appropriating funds to cover the increased cost the schools would bear as a result of the arrival of these
non-revenue-producing students on campus. The legislators were able to claim credit for the
legislation without paying the costs associated with financing it.
The Affordable Care Act: A Challenging Case
in Federalism
Probably no current controversy better illustrates the competing visions of our federal system
than the ongoing debate over national health care reform. Shortly after the passage of the Patient
Protection and Affordable Care Act (ACA or, as it is often popularly referred to, Obamacare),
former Texas Attorney General Greg Abbott joined 25 other state attorneys general in opposing
the new health care law. At issue, among other things, were the law’s mandate that individuals
purchase health insurance and the requirement that the states expand Medicaid coverage.
The ACA’s Medicaid expansion required the states to expand Medicaid coverage to people
under 65 (those 65 and older have access to Medicare) earning up to 138 percent of the federal poverty level (see Chapter 12). Under the legislation signed into law by President Obama
in 2010, the federal government covers the entire cost of this expansion for the first three
years before gradually reducing the federal contribution to 90 percent of the cost in 2020
and beyond. In the original law, states that did not opt in to the Medicaid expansion could
face the loss of all of their Medicaid funds. A total of 26 states formally challenged the constitutionality of the Medicaid expansion, 13 filed amicus briefs with the Supreme Court in
Texas and the Federal System
IMAGE 2.3 The Affordable Care Act is a recent example of the expansion of the
Chip Somodevilla/Getty Images
national government that has met with resistance. Texas was one of many states that
challenged the constitutionality of the program. Ultimately, the U.S. Supreme Court
upheld the ACA under the national government’s power to tax and spend.
★ CTQ
Why has resistance to the ACA been so intense in Texas?
support of the expansion, and in two states the governor and attorney general took opposing
sides on this issue.
The limits on what Congress can do are stipulated in Article I, Section 8 of the U.S.
Constitution. Among Congress’s powers is the power to regulate commerce. It is this authority that Congress used to justify the ACA. Congress argued that because it has the power to
regulate commerce, and the buying of health insurance is a commercial activity, Congress has
the power to regulate health care coverage.
Some disagreed that the ACA regulated commerce and concluded that it infringed on
states’ rights. Although it is the case that some powers are shared between the states and the
federal government, others are exclusive to either one or the other. For example, the power to
regulate commerce is granted to Congress. The power to provide for the public health and
safety is a power reserved to the states by the Tenth Amendment.
Former Attorney General Abbott argued in his amicus brief that the ACA did not regulate
commerce, but rather that it created policing authority that is generally the purview of the
states. In June 2012, in the case of the National Federation of Independent Business v. Sebelius,
the U.S. Supreme Court, led by Chief Justice John Roberts, rejected the federal government’s
claim that the commerce clause allowed Congress to create the individual mandate. But,
Roberts argued, the “penalty” that the law required be paid to the Internal Revenue Service
(IRS), is in actuality a “tax,” which Congress has the power to levy. As a result, the most controversial aspect of the law—the individual mandate—was deemed constitutional.
At the same time, however, the Supreme Court found that the ACA’s requirement that the
states expand access to Medicaid or suffer the potential penalty of losing all Medicaid funding
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2 Texas in the Federal System
was excessively coercive and, therefore, unconstitutional. This ruling removed a major pillar
of the ACA and has left a little more than five million Americans without health insurance
in those states that have opted not to expand their Medicaid coverage in line with the ACA.
Nowhere was the impact of this ruling more strongly felt than in Texas. Because Texas
has, at least for the time being, opted out of the Medicaid expansion, 1.3 million Texans are
not eligible to for health coverage under Medicaid; if Texas had opted in (as was the case in
California, New York, and other states), these Texans would be eligible for health coverage
through Medicaid.21 And, because the ACA provides health care subsidies only to individuals
with incomes more than 138 percent of the federal poverty level, 766,000 of these 1.3 million Texans are ineligible for federal government subsidies to purchase health care coverage
through the federally operated health care exchange in Texas. As a consequence, more than
three-quarters of a million Texans find themselves today in a health care purgatory known as
the “coverage gap”—too wealthy to qualify for Medicaid and too poor to qualify for federal
health insurance subsidies.22
Figure 2.4 shows that Texas is one of 19 primarily southern and Great Plains states that
decided not to expand their Medicaid coverage under the ACA.23 In contrast, 31 states and
Washington, D.C., had decided to move forward with the expansion. The 19 states that had
FIGURE 2.4 The Status of State Medicaid Expansion under the ACA
in 2016
This figure highlights that Texas is among the minority of U.S. states that at the present time have opted not to participate in the ACA-linked expansion of Medicaid.
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
WY
NV
CA
IL
CO
KS
AZ
PA
IA
NE
UT
MO
OH
IN
WV
NH
MA
NJ
SC
MS
AL
GA
LA
AK
FL
HI
Adopted (31 states and D.C.)
Not Adopting at This Time (19 states)
★ PRQ
Was former Governor Perry right that Texas cannot afford to pay
for the Medicaid expansion? Or were supporters right that Texas
should expand Medicaid on both moral and financial grounds?
Source: Cengage Learning
CT
DE
MD
NC
TN
AR
TX
VA
KY
OK
NM
NY
MI
RI
Texas and the Federal System
not expanded Medicaid contain 5.2 million people, one quarter of them Texans, who would
have been insured if their state had opted into the ACA Medicaid expansion.
Former Governor Perry, current Governor Abbott, and other Texas opponents of Medicaid expansion argue the state cannot afford to pay 10 percent of the cost of this expansion
in 2020 and beyond. They also believe the current Medicaid system is broken and expanding it is “like putting 1,000 more people on the Titanic when you knew what was going to
happen.”24 Finally, they also highlight that fewer and fewer doctors are accepting Medicaid
patients in Texas and question the wisdom of adding 1.3 million patients to a system in which
Medicaid patients already find it very difficult to schedule appointments with doctors.
Supporters of Medicaid expansion argue that not expanding adversely affects the health
of over a million Texans who lack insurance as a result of the decision not to expand
Medicaid. Of course, many of these 1.3 million people when ill or injured will seek care
in the state’s hospitals, hospitals that will send them bills that most will never be able to
pay. But these debts will not be fully absorbed by the hospitals, and in the end the bills will
be paid indirectly by homeowners in the form of taxes to their local hospital districts and
by Texans with private health insurance and Texas employers in the form of higher insurance premiums, instead of by the federal government in the form of additional Medicaid
payments. Had Texas expanded Medicaid, it would have seen in 2016 alone an increase
in federal expenditures to support the expansion in the amount of $7 billion, along with
$3 billion more for Texas hospitals in the form of reimbursement for care that is currently
uncompensated.25
The controversy surrounding the ACA is an excellent example of the friction that can
arise between the federal government and the states. This friction is generated by differences
in opinions revolving around the proper balance of power between the federal and state governments. This balance is in turn determined by a combination of the rules laid out in the
Constitution, in statute, and in the interpretation of these rules by our elected officials and
especially our appointed federal judges. We can see that Texas has played an active role in the
constant redefining of the concept of federalism, a topic we explore in greater detail in the
following pages.
Texas and the U.S. Abortion Debate: From Roe to
Whole Woman’s Health
Not only has the U.S. Congress acted to expand the power of the federal government, the
federal courts have done so as well. As the federal courts have expanded the scope of rights
guaranteed under the Fourteenth Amendment, state action has come under increasing court
scrutiny. For example, in 1973, the U.S. Supreme Court ruled in Roe v. Wade that women
have the right to an abortion.
In 2016, 43 years after the Roe decision, the Supreme Court, in arguably its most significant
abortion-related ruling since Roe, used a Texas case to place a limit on efforts by state legislatures
in more than a dozen states to restrict women’s access to abortion with the goal of reducing the
number of abortions that take place in their respective state. The Whole Woman’s Health
v. Hellerstedt case placed Texas once again in the national spotlight, highlighting both the
ongoing tension between the federal courts and the states and Texas’s continued prominent
role in this high-profile federal–state dispute.
Prior to 1973, every state possessed its own legislation on abortion, with abortion being
legal in a relatively small number of states (and even there only during the latter half of the
1960s), such as New York and Washington, and illegal in an overwhelming majority of the
states, including Texas. In 1973, the U.S. Supreme Court, in Roe v. Wade, declared that
Texas’s legislation making abortion illegal (except when the mother’s life was in danger) was
unconstitutional. This landmark ruling, which was based in large part on the Supreme Court
45
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2 Texas in the Federal System
justices’ belief that the Texas legislation violated a woman’s constitutional right to privacy,
effectively made abortion through the second trimester of pregnancy legal throughout the
country. Pro-choice activists had filed the suit on behalf of a pregnant Texas woman named
Norma McCorvey. McCorvey used the pseudonym Norma Roe and the case was filed in
Dallas, making the Dallas County district attorney at the time, Henry Wade, the defendant
in the suit.
During the 2013 legislative session, Texas once again vaulted to the national stage as
the result of the debate over legislation that would place some of the strictest restrictions
in the nation on the practice of abortion. In June 2013, this legislation was scuttled on the
final night of the 30-day special session by then–State Senator Wendy Davis’s 12½-hour
filibuster, which brought national attention, including tweets by President Obama and Vice
President Joe Biden supporting Davis, to the Texas abortion debate, and to Davis herself.
Davis’s victory, however, was only temporary; former Governor Perry quickly called a second
special legislative session, where with ample time the Republican Party’s legislative majorities
guaranteed passage of the bill (HB2).
Among other things, the new law prohibited abortions after 20 post-fertilization weeks
(unless needed to avoid the mother’s death or serious physical injury), required abortion clinic
physicians to have admitting privileges at a hospital located within 30 miles of the clinic,
placed greater restrictions on the use of abortion-inducing drugs, and mandated that all abortion clinics meet the same standards as ambulatory surgical centers (ASCs).
When HB2 passed, in July 2013, Texas had 40 abortion clinics located in cities throughout the state, including three cities in South Texas (Corpus Christi, Harlingen, and McAllen)
and four in West Texas (El Paso, Lubbock, Midland, and San Angelo). One year later, in July
2014, that number had been reduced to 21, and by March 2016 it dropped to 19.
HB2 had been designed to go fully into force in September 2014, which was the final
date by which clinics had to remodel or move to meet ASC standards. However, a lawsuit
filed by Whole Woman’s Health, a major Texas abortion provider with clinics in Fort Worth,
McAllen, and San Antonio (its clinics in Austin and Beaumont were closed after the passage
of HB2), delayed full implementation of the law.
Opponents of HB2 argued it was designed to make it much more difficult for women to
obtain abortions by significantly reducing the number of clinics in Texas and requiring many
women to travel long distances, often at a substantial cost. Proponents of HB2 countered that
the goal of the law was solely to protect women’s health. They further stated that the reduction in the number of clinics and cities with clinics did not significantly hinder a woman’s
ability to obtain an abortion in Texas.
In 1992 the U.S. Supreme Court, in what is widely referred to as the Casey case, concluded
that although states had a right to regulate abortion, they could not use these regulations to
place an “undue burden” on a woman’s access to abortion. In June 2016 the U.S. Supreme
Court issued perhaps its most significant abortion-related ruling since Roe, a status that until
that time had been occupied by Casey. In Whole Woman’s Health v. Hellerstedt (Dr. John Hellerstedt is the director of the Texas Department of State Health Services), the court ruled that
the HB2 requirements that Texas clinics meet ASC standards and that doctors performing
abortions have admitting privileges at local hospitals, were unconstitutional. The majority
of the justices agreed with the plaintiff that the law placed an undue burden on women,
and the Court overturned the ASC and admitting privilege requirements. As a result, as of
July 2016, instead of having only 10 abortion clinics located solely in Austin, Dallas–Fort
Worth, Houston, and San Antonio (which would have been the case had HB2 been ruled
constitutional), Texas had 17 clinics in these four major metro areas as well as one each in El
Paso and McAllen. And, with the end of the uncertainty stemming from whether or not HB2
would survive its constitutional test, it is quite possible that some clinics that closed following
Texas and the Federal System
47
the passage of HB2 will reopen, both in the major metro areas and in cities currently without
abortion clinics, such as Beaumont, Corpus Christi, and Lubbock.
Despite the growth in national government power, states remain a vital part of our federal
system. States continue to take the initiative in several areas of public policy. And as they do
so, states can adopt innovative new policies without committing the whole nation to them.
Thus states serve as public policy laboratories, providing insights on how well different policies actually work when taken from theory to practice. Successful policies are likely to be
adopted by other states; failures are likely to be shelved or revised significantly by states that
were contemplating adoption of the same policy.
One example of recent state innovation and experimentation has been in the area of drug
policy. In November 2012, voters in Colorado and Washington decided to make an audacious
move in the area of drug policy by legalizing the sale of recreational marijuana to those 21 years
of age and older and regulating and taxing the production and sale of marijuana. In both states,
citizens obtained signatures to place the reforms on the ballot, an option that does not exist in
Texas, where only the legislature is authorized to put referenda before voters. Retail sales began
in early 2014 in Colorado and in the summer of 2014 in Washington. Similar reforms were
passed by Alaska and Oregon in November 2014 and went
into force in 2015. The experiences of these four states are
IMAGE 2.4 Four states and Washington, D.C. have
likely to have a profound impact on the debate over legallegalized recreational marijuana, with commercial stores
such as this one openly selling the product to adults.
ization in those and other states, including Texas.
The Alaska, Colorado, Oregon, and Washington cases
will provide crucial evidence on the economic, legal, and
social consequences of marijuana legalization. They will
help answer questions that today are mostly a matter of
conjecture, such as the impact of legalization and associated taxes and regulation on the market for illegal marijuana, on the use of marijuana by adolescents, on the abuse
of marijuana, on the number of people driving under
the influence of marijuana, on the number of individuals penalized and incarcerated for possession, and on the
amount of tax revenue generated from marijuana production and sales. Other states can then use this information to
decide whether or not to proceed with legalization efforts
and how best to design legislation if they do move forward.
Although these four states are in the vanguard of
marijuana legalization efforts, depending on the outcomes of their experiments, they may
not be alone for long. In 1996, California became the first state to legalize the medical use of
marijuana to treat a wide range of illnesses. Since then, due in part to the success of the California experiment, 23 states have adopted similar medical marijuana legislation, but Texas
has not. Its compassionate use law applies only to rare epilepsy cases.
In contrast to Colorado, where the possession of up to an ounce of marijuana for personal
use is now legal, in Texas the possession of a similar quantity of marijuana is a Class B misdemeanor, punishable by up to 180 days in prison and a fine of up to $2,000. However, there
is presently some movement in Texas at the county level toward de facto decriminalization.
For instance, Republican Harris County District Attorney Devon Anderson’s First Chance
Intervention Program allows first-time offenders accused of possessing two ounces or less of
marijuana to avoid any criminal charges by completing eight hours of community service or
taking an eight-hour cognitive class.
David Ryder/Getty Images
States as Laboratories: Marijuana Legalization
48
2 Texas in the Federal System
How Does Texas Compare?
possession of marijuana generally subject to a small civil
penalty, similar to that received when a person commits
a minor traffic violation. In contrast, in the remaining
31 states, recreational users of marijuana run the risk of
arrest and jail time, with the prospects for jail time especially high for repeat offenders.
Marijuana Legalization and Decriminalization:
How Does Texas Compare?
Eight states and the District of Columbia have legalized
the recreational use of marijuana (Figure 2.5).
An additional 11 states have decriminalized the possession of small amounts of marijuana, with those found in
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
WY
NV
CA
IA
NE
UT
IL
CO
KS
AZ
NY
MI
MO
VA
WV
RI
NC
TN
AR
SC
MS
TX
NJ
DE
MD
DC
KY
OK
NM
CT
PA
OH
IN
NH
MA
AL
GA
LA
AK
FL
HI
Marijuana Legal for Recreational Use
Possession of Small Amounts of Marijuana Decriminalized
All Other States
FIGURE 2.5 Marijuana Legalization and Decriminalization in the States
Source: National Organization for the Reform of Marijuana Laws (NORML).
FOR DEBATE
★ PRQ
Is it a problem that Americans in some
states can legally purchase marijuana for recreational use while other
Americans purchasing and using the
same amount of marijuana can be
jailed and/or have a misdemeanor or
felony charge on their record for life?
Or is this simply an example of how a
federal system works in practice, with
individual states having a say on which
policies they embrace and which policies they reject?
★ PRQ
What should be Texas’s position on
recreational marijuana use: legalize,
decriminalize, or continue the status
quo in which the recreational use of
marijuana remains illegal and subject
to criminal prosecution?
Texas and the Federal System
Federalism and Casino Gambling
Our federal system allows the nation’s 50 states to adopt different laws in a wide range of
policy areas—legislation that often reflects the distinct preferences and values of the state’s
residents. As a result, even states that share borders (see Figure 2.6) can have policies that
differ noticeably regarding the same activity. One such example can be seen today when
crossing the Texas border into Louisiana, Oklahoma, or New Mexico: the presence of casinos
clustered along the Texas border, especially in those parts of Oklahoma and Louisiana nearest
the heavily populated Texas metro areas of Dallas–Fort Worth (DFW) and Houston. This
clustering is easy to explain: Although neighboring Louisiana, Oklahoma, and New Mexico
have over the past 20 years passed legislation allowing casino gambling to flourish, Texas
continues to maintain a ban on casino gambling.
Unlike in neighboring Louisiana, New Mexico, and Oklahoma, Class III gambling
(generally referred to as casino gambling), principally baccarat, blackjack, craps, roulette,
and slot machines, is constitutionally prohibited throughout the Lone Star State. At present,
Texas has only two small Tribal Class II gaming facilities. They are operated by the Kickapoo
outside of Eagle Pass and by the Alabama-Coushatta near Livingston on tribal land under
the authority of the federal Indian Gaming Regulatory Act. Class II facilities are restricted
to poker, bingo, and bingo-related pull-tab machines designed to look like slot machines.
FIGURE 2.6 Casinos Proximate to the Texas Border in Neighboring
States: 2016
This map highlights the large number of Louisiana and Oklahoma casinos clustered
on their border with Texas along major interstate highways. These locations allow the
casinos to attract gamblers from major population centers in Texas.
25
35
NM
40
44
Wic
27
hita
Lubbock
Fall
s
30
Fort Worth
El Paso
10
44
AR
Amarillo
40
25
OK
Odessa
Longview
Dallas
20
Midland
Waco
Killeen
Tyler
45
TEXAS
Austin
San Antonio
Beaumont
20
LA
10
Houston
37
35
Laredo
Corpus
Christi
McAllen
★ CTQ
Casinos and Racetracks w/Casinos
Interstates
Routes
Should gambling legislation be identical across the entire country, or should individual states be allowed to determine the
degree to which gambling takes place within their borders?
Sources: Let Texans Decide and Casino City.
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2 Texas in the Federal System
Ian Dagnall/Alamy
The Alabama-Coushatta and the Tigua (Ysleta del Sur Pueblo) in El Paso gained federal
recognition after the Kickapoo, when different federal rules relating to gambling were in
force. Both tribes had been seeking the right to operate a Class II gaming facility like the
Kickapoo for more than a dozen years, and in the fall of 2015 the federal National Indian
Gaming Commission issued a decision allowing both tribes to operate Class II facilities like
the Kickapoo. While the Alabama-Coushatta’s casino opened in June of 2016, the Tigua’s
efforts to open their casino continued to be blocked by a federal court injunction.
Proponents of casino gambling in Louisiana, New Mexico, and Oklahoma point to the
economic benefits of casinos, ranging from job creation and tourism to tax revenue. In Texas,
advocates for casinos highlight the flow of wealth out of Texas to neighboring states, wealth
that would mostly remain in Texas if the state allowed casinos to be built. One study (by a
pro-casino group) found that vehicles with Texas license plates accounted for approximately
40 percent to 90 percent of the cars in
casino parking lots located within 50
IMAGE 2.5 The WinStar World Casino and Resort, one of the
miles of the Texas border.26
country’s largest casinos, is located in rural Oklahoma, just three
The maintenance of the Texas ban
miles north of the Texas–Oklahoma border along I-35, a short 60- to
90-minute drive from the DFW Metroplex.
on casino gambling is due in large part
to two principal sources of opposition, combined with internal disputes
among the pro-gambling forces. The
first is opposition based on moral principles, with a significant minority of
Texans viewing gambling as a vice and
believing it to be morally wrong for the
state to sanction casino gambling. A
second form of opposition is grounded
in the concern that the establishment
of casino gambling will increase social
problems such as child neglect, crime,
domestic violence, evictions and home
foreclosures, job absenteeism, and poverty stemming from gambling addiction and abuse.
Until now, opponents of casino
gambling have retained the upper
hand in Texas, in part because of the relatively steep hurdle—a two-thirds vote in each
chamber of the Texas Legislature—needed to place the necessary constitutional amendment
referendum on the ballot, a referendum opinion polls suggest would pass easily if put before
Texas voters. What we can be sure of is that advocates of casino gambling will be back again
during the 2017 regular session of the Texas Legislature, hoping to hit the jackpot and pass
the constitutional change that has eluded them for more than two decades.
Applying What You Have Learned about
Texas in the Federal System
LO 2.4 Apply what you have learned about Texas in the federal system.
As you have learned in this chapter, Texas has taken the lead in resisting the expansion
of the federal government by challenging a variety of national policies, including the
Affordable Care Act and several environmental regulations, in court. So, we invited
Applying What You Have Learned about Texas in the Federal System
Governor Greg Abbott to explain his energetic opposition to these federal programs both
as the state’s attorney general and now as governor. After you have read the governor’s
essay, we will ask you to apply what you have learned about the principles of federalism
to Abbott’s views and to evaluate the real-world operation of American federalism in
practice.
As you read Governor Abbott’s essay, you will find that, like many Texans, he holds a conservative view of the role of the federal government. Contrary to the governor’s view, liberals
generally believe that the national government has grown to fulfill basic public needs that
states have been unwilling or unable to meet and that the U.S. Constitution gives the federal
government broad power to regulate the economy through its power to regulate interstate
commerce and to fund a broad range of public services through its power to tax and spend to
promote the general welfare.
Greg Abbott is the 48th governor of Texas. Prior to assuming office as governor in 2015,
he was the longest serving attorney general in Texas history (2002–2015), a justice on the
Texas Supreme Court (1996–2001), and a state district court judge in Harris County (1993–
1995). During his tenure in public office Abbott has been a vocal defender of what he sees as
the constitutional principles on which Texas and the United States were founded. His wife of
35 years, Cecilia Abbott, is the first Hispanic First Lady of Texas.
POLITICS IN PR ACTICE
Texas in the Federal System
by Greg Abbott
Governor of Texas
As opposed to some nations that were created by conquerors, the United States was established by defenders of liberty. Our Founders fought against a distant government that dictated too much of their lives and taxed them too much. After winning the Revolutionary
War, our Founders wanted to ensure an enduring nation that secured freedom for its people.
That freedom is the crux of the U.S. Constitution.
Our Founders knew then what we still realize today: if government is not controlled and
limited it will sap your freedom. The Founders instilled that control through the balance of
powers between the legislative, executive and judicial branches of government. Importantly,
essential checks on the federal government were enshrined in the Bill of Rights to protect the
people and States from an overreaching federal government.
The Bill of Rights includes the Tenth Amendment, which states: “The powers not delegated
to the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” The people of the United States created a government by
giving it limited authority over their lives and retaining most of the authority to themselves
and the states where they live.
As James Madison explained, “powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the State governments are
numerous and indefinite.” The framers believed that States could be trusted with “numerous
★
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2 Texas in the Federal System
and indefinite” powers because they were closer (and hence more accountable) to the people.
By contrast, Great Britain had illustrated all too well the perils of investing sweeping powers
in the less-accountable central government.
The framers knew there could come a time when the federal government they created would
overstep its bounds, and it would fall to the States to fight back against federal encroachments. Madison, one of the Constitution’s lead architects, warned: “I believe there are more
instances of the abridgement of freedom of the people by gradual and silent encroachments
by those in power than by violent and sudden usurpations.”
He was right. By gradual encroachments, all three branches of the federal government have
exceeded the powers granted them by the Constitution. In doing so, they have abridged your
freedom. For example, Congress has abandoned the limitations on its enumerated powers and
instead is regulating every aspect of your life. The President uses unilateral lawmaking—like
executive orders and administrative regulations—to circumvent the engines of democracy
altogether. The Supreme Court often ignores the plain text of the Constitution and sometimes makes up provisions that appear nowhere in that document.
As Texas Attorney General, I brought more than 30 lawsuits to challenge such federal overreach. Even courtroom victories, however, are inadequate to achieve permanent solutions
to the federal government’s systematic expansion of its powers far beyond what the framers
intended.
The consequences were predictable. With each passing year upward mobility is becoming
more challenging because our independence is being sapped by a centralized government that
erodes our freedom and limits the aspiration that elevated this great nation.
Our broken federal system today stems from our collective indifference to the limits the
Constitution places on the federal government, and our collective submission to unaccountable bureaucrats and judges who make and enforce today’s federal laws. We have effectively
submitted ourselves to the rule of men and abandoned the rule of law on which our nation
was built.
We face constitutional problems that call for a constitutional solution. The Founders gave us
a tool to deal with these challenges. It is in Article V of the Constitution that empowers the
States to amend the Constitution to rein in an overreaching federal government.
America was born as a nation in search of one thing: freedom to chart our own pathway. For
America to remain the freest nation in history, it is essential to remember that you—not some
distant government—are the architect of your future. Never relinquish that principle. Use the
tool the Founders gave you in Article V to secure your freedom. Using the Article V amendment process, we can reaffirm the framers’ faith in strong States as the primary protectors of
the people and their liberties.
1. Which of these categories best describes the governor’s view of federalism: dual federalism, cooperative federalism, or coercive federalism? Explain why his views fit into this
category.
2. What explains the growing scope of the federal government? Do you agree or disagree with Governor Abbott that this encroachment is a serious problem that is best
remedied via an amendment to the U.S. Constitution to limit the national government’s power?
Review Questions
53
★ Chapter Summary
LO 2.1 Differentiate among unitary, confederal, and
federal systems of government. Federalism is a system of
government in which power is constitutionally divided between a
national government and state or regional governments. It differs
from unitary systems of government, in which power is centralized in the hands of the national government, and confederal systems of government, in which the national government exercises
only those powers delegated to it by the confederation’s member
states.
LO 2.2 Distinguish among the types of powers in our
federal system, and explain dual and cooperative federalism within the context of the evolution of federalism
in the United States. The view of how much power should be
granted to each level of government has changed considerably
over our nation’s history. During the earliest constitutional period,
U.S. Supreme Court Chief Justice John Marshall took a broad view
of national powers. By the 1830s, a concept of dual federalism
developed in which the national government was limited and distinctly separate from the states, but that view changed in the 1930s
when the New Deal began to offer extensive grants-in-aid to the
states to help finance common national programs—the basis for
cooperative federalism. Since the 1970s, some states, especially
conservative ones, have come to resent national government
mandates and conditions for receiving federal grants; they view
today’s federal–state relationship as coercive federalism.
LO 2.3 Analyze Texas’s relationship with the federal
government and the prominent role the state has played
in the national debate over coercive federalism. Texas
has contributed to shaping this concept of federalism not only
by bringing key Supreme Court cases to the debate, but also
because the state’s current political leadership has actively participated in the debate. Many Republican leaders in Texas, from
former Governor Perry to Governor Abbott, have raised concerns
about the impact that the federal government may have on Texas,
basing their position for greater state sovereignty on the Tenth
Amendment and those other powers reserved to the states in
the Constitution. The current debate over health care reform fits
into the broader debate over states’ rights that has taken place
throughout our country’s history.
LO 2.4 Apply what you have learned about Texas in the
federal system. You used your critical thinking skills to evaluate the views of one of the most important practitioners of Texas
politics, Governor Abbott. His essay concludes that, over time, the
federal government has gradually encroached more and more
in policy areas that he believes the U.S. Constitution reserved for
the states. In order to rein in what he views as an overreaching
national government, Abbott proposes that the states join together
to use the Article V amendment process to modify the Constitution
with the goal of reasserting the equality if not primacy of the states
in our system of government.
Key Terms
block grants, p. 35
categorical grants, p. 35
coercive federalism, p. 38
commerce clause, p. 33
concurrent powers, p. 32
confederal system, p. 30
cooperative federalism,
p. 35
delegated powers, p. 32
devolution, p. 35
dual federalism, p. 34
expressed powers, p. 32
federal system, p. 31
implied powers, p. 32
inherent powers, p. 32
Jim Crow laws, p. 36
necessary and proper
clause, p. 33
preclearance, p. 37
reserved powers, p. 32
separate but equal doctrine,
p. 36
supremacy clause, p. 32
Tenth Amendment, p. 32
unfunded mandates, p. 41
unitary system, p. 30
Review Questions
LO 2.1 Differentiate among unitary, confederal, and
federal systems of government.
• What distinguishes a federal system of government
from both a unitary system of government and a confederal system of government?
• What are the advantages and disadvantages of each
type of system of government?
• What would be the pros and cons of replacing our
country’s current federal system with a unitary system? What would be the pros and cons of replacing it
with a confederal system?
LO 2.2 Distinguish among the types of powers in our
federal system, and explain dual and cooperative federalism within the context of the evolution of federalism in the United States.
54
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Texas in the Federal System
• Explain the difference between delegated and
reserved powers, and give examples of each. What is
the importance of Article I, Section 8 and the Tenth
Amendment in the U.S. Constitution? Define and
give examples of exclusive and concurrent powers.
• What is the significance of the implied powers clause
and of the necessary and proper clause?
• Explain how the national government has used the
necessary and proper clause and the commerce clause
to expand the scope of its power. Explain how the
dominant concepts of federalism in the United States
have changed as the political and legal climate has
changed.
• Describe the differences between the concepts of dual
federalism and cooperative federalism. What historical developments led to the expansion of national
government power?
• Explore the role the national government has played
in the advancement of civil rights, environmental
protection, and public health. Should the federal
government be allowed to use Section 5 of the VRA
to provide extra oversight of changes in Texas election
laws?
LO 2.3 Analyze Texas’s relationship with the federal government and the prominent role the state
has played in the national debate over coercive
federalism.
• Explain the concept of coercive federalism.
• How does the current debate over the ACA health
care reform legislation reflect growing tension in the
era of coercive federalism between the federal government on one hand and the state governments on the
other, particularly in those instances when the federal
political leadership and the political leadership in a
specific state or group of states do not see eye to eye
on a policy issue?
• Evaluate the arguments for states’ rights and the
argument that has become increasingly common
during the current era of coercive federalism that
the national government’s powers should be limited.
What role has Texas played in recent efforts to limit
national government power?
• Assess the claims that states serve as policy labora-
tories in a federal system and that federalism allows
public policy to best reflect the unique and diverse
interests of citizens across the 50 states.
Think Critically and Get Active!
Learn more about the debates over federalism. Consider
joining the American Constitution Society for Law and
Policy or the Federalist Society. Student membership
rates are affordable. You may consider attending meetings and, if possible, presenting student research papers at
those meetings. Joining may also give your résumé a little
more cachet. Be aware that the American Constitution
Society is a progressive organization, and the Federalist
Society is a conservative and libertarian organization. To
learn more and join, explore the following:
• Visit the American Constitution Society at
www.acslaw.org and read more about them.
Membership for students is $10.
• View the Federalist Society at www.fed-soc.org
and read more about them. Membership for students
is $5.
• Watch videos from the American Constitution Soci-
ety (www.acslaw.org/multimedia) and the Federalist
Society (www.fed-soc.org/multimedia), and follow
them on Twitter (@acslaw; @FedSoc). These videos
and Twitter feeds will provide you with different
perspectives on a host of current issues that feature
prominently in the ongoing debate over the functioning of federalism in the United States.
Find out how federalism affects the right to vote.
Discover more about voting rights and electoral transparency in Texas. Check out the liberal-leaning Brennan
Center for Justice website (www.brennancenter.org)
and the conservative-leaning Texas-based True the Vote
website (www.truethevote.org). Follow each organization on Twitter (@BrennanCenter; @TrueTheVote).
Learn more about Texas military bases and their
economic impact. Go to the Texas Comptroller’s
www.texasahead.org/economic-data/military as well
as the sites of specific U.S. military bases, such as Fort
Hood (www.hood.army.mil), Fort Bliss (www.bliss
.army.mil), and Joint Base San Antonio (www.jbsa.mil).
Explore the social issues facing federalism. Get
more information about marijuana legalization efforts
Think Critically and Get Active!
nationwide at www.norml.org, a website run by
advocates of marijuana legalization, and in Texas at
www.texasnorml.org. Learn more about efforts to
permit casino gambling in Texas at the pro-gambling
www.lettexansdecide.com as well as about efforts to
prevent the expansion of gambling in Texas at the antigambling www.stoppredatorygambling.org/texas.
Follow them on Twitter (@NORML; @TexasNORML;
@LetTexansDecide; @SPGambling), and search for websites of organizations opposing marijuana legalization in
the Lone Star State.
★ PRQ
55
Texans spent close to $4 billion in
2014 gambling in neighboring states.
Should Texas legalize casino gambling
to keep as many of these gambling
dollars in the state as possible and
to draw gamblers from beyond the
state’s borders? Or are the negative social consequences and moral
issues associated with gambling so
profound that Texans are best served
by the state’s not climbing aboard the
“casino gambling train”?
3
The Texas Constitution
in Perspective
Even describing the great seal of Texas, the state’s constitution is sometimes criticized as excessively detailed. In this
chapter, you are invited to explore why Texans wrote such a constitution and how it affects us today.
Bob Daemmrich/Alamy
Learning Objectives
LO 3.1 Explain the origins of the Texas Constitution and the Constitutional Convention of 1875.
LO 3.2 Describe the major constitutional structures, functions, and limits of Texas’s legislative,
executive, and judicial branches.
LO 3.3 Explain the process of amending and revising the Texas Constitution and the reasons that
amendments are frequently necessary.
LO 3.4 Apply what you have learned about the Texas Constitution.
Texas Constitutions in History
57
T
he real character of a government is determined less by the provisions of its constitution
than by the hearts and minds of its citizens. Government is a process of decision making
conditioned by its history, its people, and pressures exerted by citizens, interest groups, and
political parties.
Still, our national, state, and local governments would be vastly different were it not for
their constitutions. Although the exact meaning of constitutional provisions may be disputed,
there is general agreement that constitutions should be respected as the legal basis controlling
the fundamentals of government decision making. Constitutions serve as a rationalization
for the actions of legislatures, executives, and courts—and of the people themselves. Indeed,
the very idea of having a written constitution has become part of the political culture—the
basic system of political beliefs in the United States.
Constitutions establish major governing institutions, assign them power, and place both
implicit and explicit limits on the power they have assigned. They give governments a legal
basis for existing and, because Americans respect constitutions, they promote legitimacy—
the general public acceptance of government’s “right to govern.”
Texas Constitutions in History
legitimacy
General public acceptance of government’s
“right to govern.”
LO 3.1 Explain the origins of the Texas Constitution and the Constitutional Convention of 1875.
Like all constitutions, the first Texas constitutions reflected the interests and concerns of the
people who wrote and amended them. Many of their elements paralleled those of existing
state constitutions; others were at the time unique to the Lone Star State.
Early Texas Constitutions
The constitution of the Texas Republic and the first state constitution of Texas were products
of the plantation culture of Anglo Protestant slaveholders. These early constitutions adopted
some institutions from Texans’ experiences during Spanish and Mexican rule and forthrightly rejected others.
Republic of Texas Constitution The first Texas Constitution after indepen-
dence from Mexico was written in 1836 for the Republic of Texas. In reaction to the prominent influence of the Catholic Church during Mexican rule, the largely Protestant Texans
wrote a constitution with careful separation of church and state, forbidding clergymen of any
faith from holding office. Opposing Mexico’s antislavery policies, Texans made it illegal for
masters to free their own slaves without the consent of the Republic’s congress and denied
citizenship to descendants of Africans and Native Americans. Remembering the abuses of
the dictatorial Mexican military and political leader Antonio López de Santa Anna, Texans
limited the terms of their presidents to three years and prohibited them from being elected
to consecutive terms.
The Republic of Texas Constitution did adopt some provisions from Spanish Mexican
law. It recognized homesteads, owner-occupied properties protected from forced sale under
most circumstances. It also enshrined the concept of community property, which means
that property acquired during marriage is owned equally by both spouses. These elements of
Mexican law would later be absorbed into American political culture as other states adopted
similar provisions.
Still, the Republic’s constitution was mostly a product of the political culture of the Anglo
American southern planters. It incorporated English common law, developed from judicial
rulings and customs over time. The Texas Constitution also lifted many provisions almost
word for word from the U.S. Constitution and from the constitutions of southern states like
homesteads
Owner-occupied properties protected from
forced sale under most
circumstances.
community property
Property acquired
during marriage and
owned equally by both
spouses.
common law
Law developed from
judicial rulings and
customs over time.
58
3 The Texas Constitution in Perspective
Did You Know? Both Davy Crockett and Sam
Houston came to Texas from Tennessee. In fact, Davy
Crockett had been a congressman from Tennessee, and
Sam Houston served as Tennessee’s governor before
coming to Texas and becoming its first president.
Tennessee from which many Texas settlers had migrated.
Acting in haste because of the fear of attack from the Mexican cavalry, the Republic’s constitutional convention wrote
a concise document establishing a unitary form of government, free of many of the detailed restrictions that would
later come to limit Texas government.
Constitution of 1845 Texans wrote a new consti-
long ballot
A ballot that results
from the independent
election of a large
number of executive
and judicial officers;
in contrast, giving the
chief executive the
power to appoint most
of them results in a
short ballot.
tution in 1845 in preparation for the state’s admission to
the United States. Although the 1845 Constitution contained many provisions similar to the
Republic’s constitution, it also introduced features recognizable in today’s state constitution.
For example, it was almost twice as long as the Republic of Texas Constitution and restricted
the power of the legislature, which was allowed to meet only once every two years. The statehood constitution reflected the anti-corporate sentiment of the Old South as it required a
two-thirds vote in the Texas House of Representatives to establish any corporation and made
bank corporations illegal altogether. It limited state debt to $100,000 except in cases of war,
insurrection, or invasion, and it established the Permanent School Fund.
The only amendment to the 1845 Constitution was adopted to limit the power of the
governor by providing for the election of some of the officers that governors previously were
allowed to appoint. Before adoption of the amendment, Texas had a short ballot because the
governor had the power to appoint most executive and judicial officers. The amendment
produced a long ballot, which results from the independent election of a large number of
state officials.
Constitution of 1861 The 1861 Constitution was basically the same as that of 1845.
The principal exception was that unlike its immediate predecessor, the 1861 Constitution
reflected the poignant reality that Texas had become one of the Confederate states at war with
the Union—it increased the debt ceiling and absolutely prohibited the emancipation of slaves.
Reconstruction Constitutions and Their Aftermath
Although earlier constitutions contained a number of elements still found in today’s
Texas Constitution, it was the aftermath of the Civil War—the political reaction to
Reconstruction—that affirmed Texans’ fear of government and set the stage for the writing
of today’s state constitution.
Constitution of 1866 After the Civil War, Texans wrote the 1866 Constitution,
which they thought would satisfy the Unionists and permit the readmission of Texas under
President Andrew Johnson’s mild Reconstruction program. This document nullified secession, abolished slavery, and renounced Confederate war debts. Under its terms, a civilian
government was elected and operated for several months despite some interference from the
federal government’s Freedmen’s Bureau.
The 1866 Constitution soon became void after the Radical Republicans in Congress
passed the Reconstruction Act of 1867, which required the Confederate states to adopt constitutions that met with the approval of the U.S. Congress. As a result of this act, and operating under congressional authority, the military deposed Texas’s civilian elected officials and
effectively restored military rule.
Constitution of 1869 With most whites either barred from participating in the
election or boycotting it, voters elected members to a constitutional convention in 1868.
59
The convention produced a document that centralized state power in the hands of the governor, lengthened the chief executive’s term to four years, and allowed the governor to appoint
all major state officers, including judges. It provided annual legislative sessions, weakened
planter-controlled local government, and centralized the public school system. The convention
in 1868 reflected little of the fear of centralized government power that was later to become
the hallmark of Texas government. The proposed constitution was ratified in 1869.
The 1869 Constitution served as the instrument of government for an era that most Texans and traditional historians would regard as the most corrupt and abusive in the state’s
history. Under Republican Governor E. J. Davis, large gifts of public funds were made to
interests such as railroads; tax rates skyrocketed to fund ambitious and wasteful public programs. Many Texans simply refused to pay these exorbitant taxes, and the state government
accumulated what was for that time a massive public debt. Law and order collapsed, and
much of the state’s population fell prey to attacks by Native Americans and outlaws. Instead
of using the state police and militia to maintain the peace, Governor
Davis made them a part of his powerful political machine and a symbol
IMAGE 3.1 E. J. Davis remained loyal
of tyranny. He took control of voter registration, intimidated unsupto the United States, and his service in
portive newspapers, and arrested several political opponents.
the Union army was a bitter reminder of
In 1874, Davis’s handpicked supreme court used the location of a
Texas’s defeat in the Civil War.
semicolon in the state constitution as a pretext for invalidating the election of Democrat Richard Coke, with Davis going so far as to wire
President Ulysses S. Grant to send federal troops to prevent Democrats
from taking power. Grant refused, and Democrats slipped past guards
at the capitol and gathered in the legislative chambers to form the new
government.
According to legend, Davis, determined not to give up his office,
surrounded himself with armed state police in the capitol. Only when
a well-armed group of Coke supporters marched toward the capitol
singing “The Yellow Rose of Texas” did Davis finally vacate his office.
For most Texans, Reconstruction left a bitter memory of a humiliating,
corrupt, extravagant, and even tyrannical government.
Revisionist historians argue that Governor Davis was not personally
corrupt and that Reconstruction brought progressive policies and built
roads, railroads, and schools while protecting the civil and political
rights of former slaves. They see this period as one in which an activist
government attempted to play a positive role in people’s lives and the
period that followed as a conservative Anglo reaction to these policies.
The Constitutional Convention of 1875 Whichever
historical view is more accurate, it is clear that most Texans of the day
were determined to write a new constitution to strip power away from
★ CTQ How did resentment against
the state government. The Texas Grange, whose members were called
Governor Davis lead to the
Grangers, organized in 1873. Campaigning on a platform of “retrenchwriting of the current Texas
ment and reform,” it managed to elect at least 40 of its members to the
Constitution?
constitutional convention of 1875. Like most of the 90 delegates, they
were Democrats who were determined to strike at the heart of the big
government associated with the Reconstruction era.
To save money, the convention did not publish a journal—reflecting the frugal tone of the
final constitution. The convention cut salaries for governing officials, placed strict limits on
property taxes, and restricted state borrowing; it also was miserly with the power it granted
government officials. It stripped most of the governor’s powers, reduced the term of office
Texas State Library and Archives Commission
Texas Constitutions in History
3
The Texas Constitution in Perspective
IMAGE 3.2 Delegates to the constitutional convention of 1875 substantially
limited the power of state government.
The Center for American History/ The University of Texas at Austin
60
★ CTQ
What did delegates consider abuses of state power that needed
to be prevented in the future?
The Texas Constitution Today
from four to two years, and required that the attorney general and state judges be elected by
voters rather than being appointed by the governor.
Nor did the legislature escape the pruning of the convention. Regular legislative sessions
were to be held only once every two years. Legislative procedure was detailed in the constitution, with severe restrictions placed on the kinds of policies the legislature might enact. In
fact, a number of public policies were written into the constitution itself.
Local government was strengthened, and counties were given many of the administrative
and judicial functions of the state. Although the Grangers had opposed the idea of public
education, they were persuaded to permit it with the condition that local governments would
establish segregated schools.
The 1875 convention largely reacted to Reconstruction abuses by constraining state power.
When the convention ended, some of the money appropriated for its expenses remained
unspent. Despite opposition from African Americans, Republicans, most cities, and railroad
interests, voters ratified the current state constitution of 1876.
The Texas Constitution Today
LO 3.2 Describe the major constitutional structures, functions, and limits
of Texas’s legislative, executive, and judicial branches.
Many students begin their examination of state constitutions with some kind of ideal or
model constitution in mind. Comparisons with this ideal then leave them with the feeling
that if only this or that provision were changed, state government would somehow find its
way to honesty, efficiency, and effectiveness. In truth, there is no ideal constitution that
would serve well in each of the uniquely diverse 50 U.S. states, nor is it possible to write a state
constitution that could permanently meet the dynamically changing needs and concerns
of citizens. Further, because a government is much more than its constitution, honest and
effective government must be commanded by the political environment—leaders, citizens,
parties, interest groups, and so forth; constitutions cannot guarantee it. Scoundrels will be
corrupt and unconcerned citizens apathetic under even the best constitution.
However, this pragmatic view of the role of state constitutions should not lead to the
conclusion that they are only incidental to good government. A workable constitution is
necessary for effective government even if it is not sufficient to guarantee it. Low salaries
may discourage independent and high-caliber leaders from seeking office or lead to potential
conflicts of interest if public officials are forced to supplement their incomes from outside
sources. Constitutional restrictions may make it virtually impossible for government to meet
the changing needs of its citizens, and institutions may be set up in such a way that they will
operate inefficiently and irresponsibly.
The events preceding the adoption of the 1876 Texas Constitution did not provide the
background for developing a constitution capable of serving well under the pressures and
changes that would take place in the century to follow. The decade of the 1870s was an era
of paranoia and reaction, and the constitution it produced was directed more toward solving
the problems arising from Reconstruction than toward meeting the challenges of generations
to follow—it was literally a reactionary document.
The current Texas Constitution is also an expansive document, approximately 87,000
words in length. Eleven times longer than the U.S. Constitution, the Texas constitution is
the second longest in the 50 states, bested only by the gargantuan Alabama Constitution.
Bill of Rights and Fundamental Liberty
Although the Texas Constitution has been the target of much criticism, it contains a Bill of
Rights (Article 1) that is often held in high regard because it reflects basic American political
61
62
3 The Texas Constitution in Perspective
statutory law
Law passed by legislatures and written into
books of code.
culture and contains provisions that are similar to those found in other state charters and the
U.S. Constitution.
The Fourteenth Amendment to the U.S. Constitution provides that no state shall deny
any person life, liberty, or property without due process of law. As the U.S. Supreme Court
has interpreted this Amendment, it has ruled that states must respect most of the U.S. Bill of
Rights because its provisions are essential to “liberty” and “due process.” As a result, many
individual rights are protected by both the state and federal courts. If the state courts fail to
protect an individual’s rights, that person can also then seek a remedy in the federal courts.
Table 3.1 shows important basic rights protected by both the U.S. and Texas constitutions.
State constitutional guarantees are not redundant, however, because the U.S. Constitution
establishes only minimum standards for the states. Texas’s courts have interpreted some state
constitutional provisions to broaden basic rights beyond these minimums. Although the U.S.
Supreme Court refused to interpret the Fourteenth Amendment as guaranteeing equal public
school funding,1 the Texas Supreme Court interpreted the efficiency clause of the Texas Constitution (Article 7, Section 1) as requiring greater equity in public schools.2 By using Texas’s
constitutional and statutory law (law passed by legislatures and written into books of code),
Texas courts have struck down polygraph tests for public employees, required workers’ compensation for farmworkers, expanded free speech rights of private employees, and affirmed
free speech rights at privately owned shopping malls.
TABLE 3.1 Basic Rights in the Texas and U.S. Constitutions
These rights are guaranteed by both the U.S. and Texas constitutions.
Basic Right
Texas Constitution
U.S. Constitution
Religious liberty
Article 1, Sections 4–7
First and Fourteenth Amendments
Freedom of expression
Article 1, Sections 8 and 27
First and Fourteenth Amendments
Right to keep and bear arms
Article 1, Section 23
Second and Fourteenth Amendments
Against quartering troops
Article 1, Section 25
Third Amendment
Against unreasonable search and seizure
Article 1, Section 9
Fourth and Fourteenth Amendments
Right to grand jury indictment for felonies
Article 1, Section 10
Fifth Amendment
Right to just compensation for taking
property for public use
Article 1, Section 17
Fifth and Fourteenth Amendments
Right to due process of law
Article 1, Section 19
Fifth and Fourteenth Amendments
Right against double jeopardy
Article 1, Section 14
Fifth and Fourteenth Amendments
Right against forced self-incrimination
Article 1, Section 10
Fifth and Fourteenth Amendments
Right to fair trial by jury
Article 1, Section 10
Sixth and Fourteenth Amendments
Rights against excessive bail or cruel and
unusual punishment
Article 1, Sections 11 and 13
Eighth and Fourteenth Amendments
 Explain how states can set higher standards than the national government does
for applying these provisions. What rights does the Texas Constitution protect
that the U.S. Constitution does not?
The Texas Constitution Today
The Texas Bill of Rights guarantees additional rights not specifically mentioned in the
U.S. Constitution. Notably, Texas has adopted an amendment to prohibit discrimination
based on sex. A similar guarantee was proposed as the Equal Rights Amendment to the U.S.
Constitution, but it was not ratified by the states. The Texas Constitution also guarantees
victims’ rights and access to public beaches. It forbids imprisonment for debt or committing
the mentally ill for an extended period without a jury trial. It also prohibits monopolies and
absolutely forbids suspending the writ of habeas corpus, which is a court order to present
a person and show the legal cause for confining the individual; it may result in a prisoner’s
release from unlawful detention. Article 16 protects homesteads and prohibits the garnishment of wages except for court-ordered child support. The Texas Bill of Rights and other
provisions guarantee the average citizen a greater variety of protections than most other state
constitutions. We will discuss Texans’ basic rights extensively in Chapter 10.
63
writ of habeas corpus
A court order to present a person and show
the legal cause for
confining the individual; it may result in a
prisoner’s release from
unlawful detention.
Separation of Powers
Like the state bill of rights, Article 2 of the Texas Constitution limits government. To prevent the concentration of power in the hands of any single institution, the national government and all states at the minimum have provided for a separation of powers among three
branches of government—legislative, executive, and judicial. The function of the legislative
branch is to make laws, and it is by law that governments define crime, establish the basis
of civil suits, determine what will be taxed and who will pay how much in taxes, and set up
government programs and the agencies that administer them. The function of the executive
branch is to carry out the law, to arrest criminals, to collect taxes, to provide public services,
to hire government employees, and to supervise their day-to-day conduct. The function of the
judicial branch is to interpret the law as it applies to individuals and institutions.
Despite the separation of powers, there is still the potential for any of these three branches
to abuse whatever powers they have been given. The Texas Constitution also follows American tradition in subsequent constitutional articles: it sets up a system of checks and balances, the concept that each branch of government is assigned power to limit abuses by the
others. Table 3.2 illustrates that, under certain circumstances, a function normally assigned
to one branch of government can be influenced by another. For example, the veto power that
deals with lawmaking (a legislative function) is given to the governor (an executive). Impeachment and conviction, which deal with determining guilt (a judicial function), are given to the
legislature. The state senate (a house of the legislature) confirms appointments the governor
makes in the executive branch. Although there is a separation of powers, the checks-andbalances system requires that each branch have the opportunity to influence the others. The
three branches specialize in separate functions, but there is some sharing of powers as well. In
Chapters 7, 8 and 9, you will see how extensively these three branches of government interact
in practice.
separation of powers
The principle behind
the concept of a
government in which
power is distributed
among three different
branches—legislative,
executive, and judicial.
checks and balances
The concept that each
branch of government
is assigned power to
limit abuses by the
others.
Legislative Branch
The legislative article (Article 3) is by far the longest in the Texas Constitution. As is the
case at the federal level and in 49 states, the Texas Constitution provides for a bicameral,
two-house legislative body made up of the 31-member Senate and the 150-member House of
Representatives. Among the states, only Nebraska has a unicameral, one-house legislature.
The 1876 Constitution raised the number of senators to 31 and representatives to 93, with
the provision that the size of the House could increase as the state’s population grew, but only
up to a maximum of 150 representatives. Following the drafting of the 1876 Constitution and
the 1880 census, each senator represented an average of 51,000 people and each representative
an average of 17,000. Today, the average is 10 times more people (183,000) per representative
and 17 times more (886,000) per senator than when the constitution was written.
bicameral
Consisting of two
houses or chambers, such as a senate and a house of
representatives.
64
3 The Texas Constitution in Perspective
TABLE 3.2 Texas’s Constitutional Checks and Balances
This table shows the major checks and balances in the Texas Constitution. In practice, the political environment determines how effectively they limit each branch of
government.
Checks on the Legislature
Checks on the Executive Branch
Checks on the Judicial Branch
•
The governor may veto bills
passed by the legislature subject
to a two-thirds vote to override.
•
Texas’s House of Representatives
may impeach an executive by a
majority vote.
•
The governor appoints judges to
fill vacancies in district and higher
courts until the next election.
•
The governor may use the lineitem veto on appropriations bills.
•
•
The House may impeach and the
Senate may remove state judges.
•
The governor may call special
legislative sessions and set their
agenda.
Texas’s Senate may convict and
remove an executive by a twothirds vote.
•
•
The legislature sets judicial
salaries.
•
The governor may address
the legislature and designate
emergency legislation that can be
considered in the first 30 days of
the session.
The Senate confirms official
appointments of the governor by a
two-thirds vote.
•
The legislature establishes many
lower courts by statute.
•
The legislature may pass new
laws if it disagrees with court
interpretation of existing ones.
•
Two-thirds of the legislature
may propose constitutional
amendments to overturn court
decisions.
•
The courts use judicial review
to declare legislative acts
unconstitutional.
•
The legislature, by statute,
creates many executive agencies,
assigns them their powers, and
appropriates their funds.
•
The courts may declare actions
of the governor or state agencies
unconstitutional or illegal.
 How effective are these checks when, as in Texas today, all three branches of
government are controlled by the same political party? Do these checks lead to
gridlock when control of the three branches is divided between two parties?
Senators are elected for a four-year term (with one-half of the body elected in one general
election and the other half in the next, except immediately after redistricting, when all senators stand for election at the same time) from single-member districts. Each senator must be
at least 26 years old, be a citizen, and be a resident of the state for at least five years and of
the district for one year. Representatives are elected for a two-year term with the entire house
elected every two years. Each representative must be at least 21 years old, a citizen, and a
resident of the state for two years and of the district for one year.
As in most states, Texas legislators may serve as many times as voters choose to elect them;
the longest-serving member of the Texas legislature, Representative Tom Craddick of Midland, has served in the legislature continuously since 1969. In contrast, some 15 states limit
the number of consecutive terms legislators may serve or the total number of terms they may
serve during their lifetime.
The Texas Constitution sets the salary of a state legislator at $7,200 per year, and it can
be changed only by voter approval of a recommendation for an increase made by the Texas
Ethics Commission. The Ethics Commission has made no such recommendation but has
exercised its power to increase the per diem (daily) allowance for legislators, currently $190,
while the legislature is in session. This meager salary is noticeably lower than in other major
states; for instance, California legislators receive a salary of $91,197 per year and New York
legislators earn $79,500.3 As a result, most Texas legislators hold jobs outside the legislature,
jobs that can create a potential conflict between legislators’ personal financial interests and
their mandate to represent the public’s interest.
65
In Texas, regular legislative sessions are scheduled by the constitution. They are held once
every two years and are consequently referred to as biennial regular sessions. These biennial
biennial regular
sessions
regular sessions last for 140 days between January and May or June of odd-numbered years.
In Texas, regular legIn contrast, other major states such as California, Michigan, and New York do not limit the
islative sessions are
length of legislative sessions.
scheduled by the conAs a result of the relatively short sessions, important legislation may be rushed through
stitution. They are held
once every two years
the legislative process with insufficient analysis and debate. Other important legislation may
and are consequently
never reach the floor or even be discussed in a legislative committee because of time limitareferred to as biennial
tions. In fact, legislative leaders often strategically delay action on bills they oppose, knowing
regular sessions.
that they will die when the legislature adjourns.
Except to deal with extremely rare instances of impeachment, Texas’s legislature may not
call itself into special sessions or determine the issues to be considered during a special
special sessions
Legislative sessions
session. Governors may convene special sessions lasting no more than 30 days and limited
called by the Texas
to considering only the legislative matters they present. Governors can call as many special
governor, who also
sessions as they wish, providing them with a powerful legislative advantage. For example,
sets their agenda.
after former State Senator Wendy Davis successfully blocked legislation to regulate and limit
abortions in a 2013 special session, former Governor Rick Perry announced the next day that
he was calling a second special session. The same legislation was reintroduced and, given the
additional time, easily passed in just 11 days.
Other constitutional features also limit the legislature. The Texas Constitution establishes
more specific procedural requirements than most other state constitutions. Although the provision is often suspended, the constitution requires that a bill must be read on three separate
days unless four-fifths of the legislature votes to set aside the requirement. It stipulates when
bills may be introduced and how they will be reported out of committee, signed, and entered
in the legislative journal once enacted. It even specifies how the enacting clause will read.
Although most states legally require a balanced budget, Texas’s constitutional restriction
would appear to be more effective than most. Article 3,
Section 49 strictly limits the legislature in authorizing
IMAGE 3.3 In 2015, Texans amended the state constate debt except under rare conditions. The comptrolstitution to make hunting a constitutional right. Here
ler of public accounts is required to certify that funds
Governor Greg Abbott is shown exercising that right.
are available for each appropriations measure adopted.
Although specific constitutional amendments have
authorized the sale of bonds for student loans, parks and
water development, and prison construction, Texas’s per
capita state debt remains among the lowest in the nation.
Constitutional detail further constrains the legislature by making policies on subjects that normally would
be handled by legislative statute. Much of the length of
Article 3 results from its in-depth description of state
policies such as the Veterans’ Land Program, Texas park
and water development funds, student loans, welfare
programs, a grain warehouse self-insurance fund, and
the municipal donation of outdated firefighting equipment. The constitution establishes the design of the
great seal of Texas, authorizes the legislature to pass
★ CTQ Is this a matter important enough to
fence laws, and even explains how the state must purbe included in the constitution? Or is
chase stationery! Article 16 authorizes the legislature
it a detail that the legislature can be
to regulate cattle brands; Article 11 permits the buildtrusted to protect as it adopts hunting
ing of sea walls. By including such statute-like details
regulations?
in the Texas Constitution, its drafters guaranteed that
Texans for Greg Abbott, a Texas corporation
The Texas Constitution Today
66
3
The Texas Constitution in Perspective
deadwood
Inoperable constitutional provisions
that have been either
voided by a conflicting
U.S. constitutional or
statutory law or made
irrelevant by changing circumstances and
contexts.
even relatively unimportant decisions that could easily be handled by the legislature can be
changed only by constitutional amendment.
Events may outstrip detailed constitutional provisions, leaving deadwood, inoperable
constitutional provisions that have been either voided by a conflicting U.S. constitutional or
statutory law or made irrelevant by changing circumstances and contexts. For example, the
state constitutional provision forbidding same-sex marriages has become inoperative because
of a ruling by the U.S. Supreme Court. To remove this or any other unnecessary detail, voters would have to approve a constitutional amendment. The basic distrust of the legislature,
however much it may have been deserved in 1876, put a straitjacket on the state’s ability to
cope with the challenges of the twenty-first century.
Executive Branch
Article 4 establishes the executive branch, with the governor as its head. The governor must
be a citizen, at least 30 years of age, and a resident of the state for five years immediately preceding his or her election to a four-year term. The constitution no longer limits the governor’s
salary, and, according to statute, it is presently $153,750.
Although Texas is one of only 14 states that place no term limits of any type on the governor’s reelection, Texas governors have historically served very short tenures. In fact, governors
served a term of only two years until the constitution was amended in 1972 to lengthen
the term to four years. Before former Governor Perry served 14 consecutive years between
December 2000 and January 2015, Allan Shivers had the record with just under eight consecutive years served between 1949 and 1957. Bill Clements served eight full years, but his two
terms (1979–1983 and 1987–1991) were not consecutive.
Although the constitution provides that the governor
shall
be the chief executive, it actually establishes a plural
Did You Know? The constitution sets the
executive,
which is an executive branch in which power is
lieutenant governor’s salary at only $7,200 while the
divided among several independently elected officials—the
legislature sets the salary of the governor, attorney
general, and comptroller at $153,750?
governor, lieutenant governor, attorney general, comptroller
of public accounts, commissioner of the general land office,
and three railroad commissioners—thereby weakening the
governor’s power to act as the chief executive. All of these
officials
are
elected
for
four-year
terms with the exception of the railroad commissioners,
plural executive
who
are
elected
for
six-year
terms
on
a staggered cycle with alternating positions being filled
An executive branch
in which power is
every two years. There are also provisions for a state board of education to be either elected or
divided among several
appointed. The constitution does allow the governor to appoint one major state officer—the
independently elected
secretary of state—but Texas remains one of only six states lacking a formal cabinet.
officials, thereby weakIn the tradition of the constitutional plural executive, the legislature by statute has also
ening the governor’s
power to act as the
established an elected commissioner of agriculture and has exercised its option to make the
chief executive.
state board of education elected independently of the governor. The result of electing so many
state executive officers is a long ballot that many voters find confusing because it is difficult
for them to assign responsibility in a system of diffused power.
indirect appointive
powers
Most of the remaining agencies that the legislature has established to administer state proTexas governor’s
grams are run by appointed multimember boards with substantial formal independence from
authority to appoint
the governor. The governor has indirect appointive powers to appoint supervisory boards
supervisory boards but
but not the operational directors for most state agencies. The governor is empowered to name
not the operational
directors for most
the members of supervisory boards to six-year staggered terms with the approval of two-thirds
state agencies.
of the state senate. Each board, in turn, appoints its agency’s director. The governor usually
does not appoint the agency administrator directly—the board does.
removal power
The Texas governor has limited removal power, a limited authority to fire appointed
The authority to fire
officials. The governor may fire his or her own staff and advisors at will, but removal of
appointed officials.
The Texas Constitution Today
state officers is more difficult. The governor may fire appointed officers only if two-thirds
of the senators agree that there is just cause for removal, making firing almost as difficult as
impeachment and conviction. Furthermore, the governor may not remove anyone appointed
by a preceding governor. Directive power (to issue binding orders to state agencies) is still
quite restricted, and budgetary power (to recommend to the legislature how much it should
appropriate for various executive agencies) is limited by the competing influences of the Legislative Budget Board.
The statutes and the constitution combine to make the governor a relatively weak executive, but the veto power provides the governor with a profound amount of influence over
the legislative process. Since 1942, Texas governors have vetoed almost 1,300 bills, and only
once during that entire time period did the Texas legislature muster the necessary two-thirds
vote to override a governor’s veto. In 1979, the legislature narrowly overrode Governor Bill
Clements’ veto of legislation granting the Comal County Commissioners Court the power to
regulate hunting and fishing in the county.
In practice, the Texas legislature often lacks the opportunity to override a veto because
major legislation may be adopted during the last days of the session. The Texas Constitution
allows the governor 10 days (excluding Sundays) to act during the session and 20 days after
it adjourns. For legislation passed during the final days of the legislative session, the governor
may avoid the threat of an override by simply waiting until the legislature adjourns before
vetoing the bill.
Texas is among 44 states that give the governor line-item veto power to strike out particular sections of an appropriations bill without vetoing the entire bill. Several states also
allow their governors to item veto matters other than appropriations, but Texas does not, only
permitting line-item vetoes of appropriations legislation. The governor of Texas lacks both
the reduction veto (the power to reduce amounts in an appropriations bill without striking
them out altogether) and the pocket veto (the power to kill legislation by simply ignoring it
after the end of the legislative session).
Judicial Branch
Just as the constitution divides power in the executive branch, Article 5 also fragments the
judicial branch. Texas is the only state other than Oklahoma that has two courts of final
appeal. The highest court for civil matters is the nine-member Texas Supreme Court; the
other, for criminal matters, is the nine-member Texas Court of Criminal Appeals. Leaving
some flexibility as to number and jurisdiction, the constitution also creates courts of appeals,
as well as district, county, and justice of the peace courts. The same article describes the selection of grand and trial juries and such county administrative officers as sheriff, county clerk,
county attorney, and district attorney.
The number and variety of courts are confusing to the average citizen, and coordination
and supervision are minimal. State courts have also come under attack because of the lack
of qualified judges. The constitution specifies only general qualifications for county judges
and justices of the peace, who do not need to be lawyers. There were very likely good reasons
for people without legal training to serve as judges during the latter part of the nineteenth
century, but today many Texans regard them as an anachronism.
Another factor that affects their qualifications is the way judges are selected. In Texas,
judges are chosen in partisan elections, general elections in which the candidates are nominated by political parties and their respective party labels appear on the ballot. Trial judges
are elected to serve for four years and appeals court judges for six, but judges often leave
office before the end of their last term. The governor has the power to fill most judicial
vacancies until the next election—a power that gives the governor considerable influence
over the makeup of the courts; once in office, the governor’s appointees have the advantages
67
directive power
The power to issue
binding orders to state
agencies.
budgetary power
The power to recommend to the legislature
how much it should
appropriate for various
executive agencies.
line-item veto
The power to strike
out sections of a bill
without vetoing the
entire bill.
reduction veto
The power to reduce
amounts in an appropriations bill without
striking them out altogether; this power is
not available to Texas’s
governor.
pocket veto
The power to kill
legislation by simply
ignoring it after the
end of the legislative
session; this power is
not available to Texas’s
governor.
partisan elections
General elections in
which political parties
nominate candidates
whose party labels
appear on the ballot.
68
3
The Texas Constitution in Perspective
of incumbency and often are returned to office without facing a serious challenge in the next
election.
Voting Rights
suffrage
The legal right to vote.
initiative
A process that empowers citizens to place a
proposal on the ballot
for voter approval. If
the measure passes, it
becomes law (permitted in some Texas cities but not at the state
level).
referendums
An election that
permits voters to
determine if an ordinance or statute will go
into effect (permitted
in some Texas cities
but not at the state
level).
popular recalls
A special election
to remove an official
before the end of his
or her term, initiated
by citizen petition (permitted in some Texas
cities but not at the
state level).
A major function of state and local governments in the United States is to determine the character of democracy, as they administer elections and set requirements for suffrage (the legal
right to vote). Article 6 of the Texas Constitution, which deals with suffrage requirements,
denies the right to vote to persons under age 18, certain convicted felons, and individuals
found mentally incompetent by a court of law. We will discuss the evolution of Texans’ suffrage rights extensively in Chapter 4.
Although constitutional restrictions on voter qualifications are now as minimal as any in
the nation, Texans still lack certain opportunities to participate directly in state government.
Unlike many states, the Texas Constitution does not allow statewide initiative, a process that
empowers citizens to place a proposal on the ballot for voter approval. Neither does the constitution permit statewide referendums, elections that permit voters to determine whether a
statute will go into effect.
Likewise, the Texas Constitution does not allow for popular recalls, special elections
initiated by citizen petitions to remove state officials before the end of their term. Initiatives,
referendums, and popular recall are permitted in many other states and even in some Texas
cities, but not at the state level in Texas.
Texas permits voters to decide directly on only three statewide matters: ratifying constitutional amendments, establishing a state income tax, and setting legislative salaries. Texas
political parties sometimes place propositions on their primary ballots, but the results are
purely symbolic and are not legally binding.
Public Education
Article 7 of the Texas Constitution states that a “general diffusion of knowledge being
essential to the preservation of the liberties and rights of the people, it shall be the duty of
the Legislature of the State to establish and make suitable provision for the support and
maintenance of an efficient system of public free schools.” In the seminal case of Edgewood
Independent School District v. Kirby in 1989, the Texas Supreme Court found that the existing method of financing the state’s public schools violated the Texas Constitution because
of dramatic differences in per-student spending levels among the state’s school districts.
Edgewood eventually led to school finance reforms that made funding more equitable across
districts, but the case also spawned an ongoing legal debate over the funding of public education in Texas, with judges serving as the arbiters in a continuing series of disputes over
what constitutes a suitable and efficient education system. In our Politics in Practice feature, Holly McIntush, an attorney for numerous school districts, including the Fort Bend
ISD, describes her lawsuit against state school funding formulas that was recently decided
by the Texas Supreme Court.
Local Government
The Texas Constitution subordinates local governments to the state, and it decentralizes
government power by assigning many state responsibilities to local governments, especially
counties. As a result, the constitution describes a rigid organizational structure for counties in
Articles 9 and 16, and voters of the entire state were once required to approve amendments so
individual counties could abolish obsolete county offices like hide inspector, superintendent
of schools, and weigher. The constitution now authorizes county voters to abolish certain
offices, but there is no provision for county home rule. As in state government, the constitution divides and diffuses county powers through a plural executive system.
The Texas Constitution Today
69
How Does Texas Compare?
sale and consumption of marijuana for recreational use.
Other states have indirect initiative, in which a successful
petition requires the legislature to consider a proposal,
which is then placed on the ballot only if the legislature
fails to pass it.
A second form of direct democracy is the popular
referendum, which allows voters effectively to repeal a new
law passed by the state legislature. Voters may organize a
petition to place the objectionable legislation on the ballot.
If the petition contains the minimum number of valid
signatures, the law’s implementation is delayed until a referendum can be held, and the law is voided if voters reject it.
Methods of Direct Democracy
Figure 3.1 shows that more than half of the states allow
citizens to play some direct role in making or repealing
laws through initiative or referendum.
In states with constitutions that permit initiatives,
voters may submit petitions proposing changes to
statutes or the state constitution. Initiative proposals in
most states are placed directly on the ballot if a required
minimum number of registered voters have signed the
petition. For example, citizens in Colorado, Oregon, and
Washington have successfully used this direct initiative process to put measures on the ballot legalizing the
WA
MT
ME
ND
OR
VT
MN
ID
NH
WI
SD
WY
NV
CA
IA
NE
UT
IL*
CO
KS
AZ
WV
MO
NJ
RI
CT
DE
MD**
NC
TN
AR
SC
MS*
TX
VA
KY
OK
NM**
PA
OH
IN
MA
NY
MI
AL
GA
Direct democracy
No direct democracy
LA
AK
FL*
HI
* State constitutions permit initiatives but not popular referendums in
Florida, Illinois, and Mississippi.
** The constitutions of Maryland and New Mexico permit referendums
but not initiatives.
FIGURE 3.1 States with Constitutional Provisions for Direct Democracy
This figure shows that 26 states have some sort of mechanism for direct democracy,
including initiative, popular referendum, or both. The Texas Constitution, however,
does not empower Texans to place any type of legislation on the ballot.
National Conference of State Legislatures.
FOR DEBATE
★ SRQ
Should the Texas Constitution be
reformed to allow for initiative and referendum? Or is legislation too complex to
be understood by ordinary voters? Would
voters be too easily swayed by special
interests that could organize expensive
campaigns for or against initiatives?
★ CTQ
Give examples of proposals that you
think voters would approve if they
had these tools of popular democracy.
Given what you know about the Texas
political culture, do you think Texans
would vote to legalize marijuana?
70
3
The Texas Constitution in Perspective
The legislature has the power to set up structures for city governments and offers municipalities several standard alternative general-law charters. Cities with populations of more than
5,000 may adopt home-rule charters that establish any organizational structure or program
that does not conflict with state law or the constitution.
Generally, the legislature has the power to provide for the establishment of limitedpurpose local governments known as special districts. Numerous special districts are also
established by the constitution itself, and to eliminate one of
these requires a constitutional amendment. Many of them
have been created to perform functions that general-purpose
local governments, such as counties and cities, cannot afford
Did You Know? Although at the end of
because of constitutional tax and debt limits. Arising out
World War II almost two-thirds of the state’s 254
counties had a county superintendent of schools, the
of constitutional restrictions, special districts have multievolution of public education in the state eventually
plied taxing and spending authorities and, except for school
rendered the position obsolete, and today it continues
districts, operate largely outside of the public’s view. In
to exist in only two counties: Dallas and Harris.
Chapter 11, we will discuss how constitutional provisions
for local governments are implemented in practice.
Amending and Revising the Texas
Constitution
proposal of constitutional amendments
In Texas, the proposal
of a constitutional
amendment must
be supported by
two-thirds of the
total membership of
each house of the
legislature—at least
21 senators and 100
representatives.
LO 3.3 Explain the process of amending and revising the Texas Constitution and the reasons that amendments are frequently necessary.
Given the level of detail in the Texas Constitution, it is frequently necessary to amend it to
reflect changing realities. The large number of constitutional amendments ratified since 1876
suggests that Texans understand the need to amend the constitution, even though they have
steadfastly resisted any attempts to systematically revise it.
Amendment Procedures
Article 17 of the Texas Constitution establishes the constitutional amendment process as
a two-step process, shown in Figure 3.2. First, proposal of constitutional amendments
FIGURE 3.2 The Two-Step Constitutional Amendment Process
Amending the Texas Constitution requires proposal and ratification. Even though the
process appears to be fairly difficult, the Texas constitution has been amended more
than 46 other state constitutions.
1
Proposal
Two-thirds of the total
number of representatives
and senators in
each house
★ CTQ
2
Ratification
A majority of voters casting
ballots on the amendment
Why have so many amendments been added to the state’s constitution? Does the number of amendments indicate a need for
constitutional revision? Why or why not?
Source: Cengage Learning
Amending and Revising the Texas Constitution
must be supported by two-thirds of the total membership of each house of the Texas
legislature—at least 21 senators and 100 representatives. Second, ratification of constitutional amendments, which actually puts them into effect, requires approval by a
majority of those persons voting on the amendment in either a regular or a special election. Because such an extraordinary majority of legislators must agree merely to propose
constitutional amendments, a number of them are relatively uncontroversial. Since 1876
voters have approved almost three-quarters of all proposed constitutional amendments,
and during the past 20 years voters have approved more than 90 percent of proposed
amendments.
Recent Constitutional Amendments
Every legislative session over the last half century has proposed at least one constitutional
amendment, and most have proposed several. Recent constitutional amendments have sometimes been minor, such as the one in 2013 to repeal a deadwood provision for a state medical
education board that had ceased to operate and had no funds; some have been of mostly
symbolic importance, such as the right to hunt amendment in 2015. Still others have been of
major substantive importance, such as the 2014 amendment to boost highway spending significantly with up to $2.5 billion per year from general sales tax revenue and up to 35 percent
of the motor fuels and car rental taxes.
Since 1995, the legislature has voted to present a total of 152 proposed constitutional
amendments to Texas voters. With few exceptions, voters cast their ballots on these amendments in November of odd-numbered years, when few other issues are being decided and
voter participation is extremely low. Since 1995, voter turnout in off-year constitutional
amendment elections has ranged from a low of 5 percent to a high of 14 percent and has averaged only 7 percent of the state’s voting age population.
In contrast, turnout in state general elections has averaged 36 percent in even-numbered
years, when federal, state, and county officials are on the ballot. Table 3.3 shows that average
turnout in general elections is more than five times greater than in the odd-year constitutional amendment elections.
Table 3.3 shows that most constitutional amendments presented to voters since 1995 have
been approved. Only about one out of every ten amendments failed to be ratified by voters
during this period. Three amendment proposals were rejected in 2011—perhaps not coincidentally, all three of the rejected amendments were portrayed by opponents as backdoor
attempts to increase taxes.
Criticisms of the Texas Constitution
The Texas Constitution is one of the longest, most detailed, and most frequently amended
state constitutions in the nation. With approximately 87,000 words, it is the nation’s second
longest after Alabama’s; with 491 amendments, it is the fourth most amended state constitution, because Texans have often responded to emerging challenges by further amending their
constitution. The constitution, reformers charge, is poorly organized and confusing to most
of the state’s citizens.
Every state constitution is longer than the U.S. Constitution, but few are as restrictive
as the Texas Constitution. The continuing need to amend a detailed and restrictive state
constitution means that citizens are frequently called on to pass judgment on proposed
amendments. Some of the constitution’s defenders maintain that giving Texas voters the
opportunity to express themselves on constitutional amendments reaffirms popular control
of government. In reality, faced with trivial, confusing, or technical proposals, voters display
little interest in amendment elections.
71
ratification of constitutional amendments
To actually put a constitutional amendment
into effect requires
approval by a majority
of those persons voting on the amendment
in either a regular or a
special election.
72
3 The Texas Constitution in Perspective
TABLE 3.3 Amending the Texas Constitution in Off-Year Elections:
1995–2015
This table shows that voters ratify most constitutional amendments that the legislature proposes. Notice how few Texans actually participate in the ratification process
in off-year elections compared to those who vote in general elections when federal,
state, and county offices are on the ballot.
Election Year
(month)
Number of
Amendments
Proposed
Number of
Amendments
Passed
Voter Turnout
(percent of voting
age population)
Voter Turnout in Subsequent
Even-Year General Election
(percent of voting age population)
2015 (Nov)
7
7
8
43
2013 (Nov)
9
9
6
25
2011 (Nov)
10
7
4
44
2009 (Nov)
11
11
6
27
2007 (Nov)
16
16
6
46
2007 (May)
1
1
5
46
2005 (Nov)
9
7
14
26
2003 (Sept)
22
22
9
46
2001 (Nov)
19
19
6
29
1999 (Nov)
17
13
7
44
1997 (Nov)
14
12
9
27
1997 (Aug)
1
1
5
27
1995 (Nov)
14
11
6
41
7%
36%
Average Turnout
Texas Secretary of State.
 Does the low level of voter turnout in these off-year elections undermine the
legitimacy of the constitutional amendment process in Texas? Should the constitution be reformed to require that voting on constitutional amendments only
take place in general elections in even-numbered years?
Attempts to Revise the Texas Constitution
Attempts to substantially revise the constitution have met with successive failures. Ironically,
in 1972, Texas voters had to amend the constitution to provide for its revision. Under the
provisions of that amendment, the legislature established a constitutional revision commission of 37 members appointed by the governor, lieutenant governor, speaker of the house,
attorney general, chief justice of the supreme court, and presiding judge of the court of criminal appeals. The commission made several proposals. Meeting in 1974, the legislature acted
as a constitutional convention and agreed to many of these recommendations. However, the
convention divided over the issue of a right-to-work provision, and the final document could
not muster the two-thirds vote needed to submit the proposal to the electorate.
Applying What You Have Learned About the Texas Constitution
73
In the 1975 regular session, the legislature proposed eight constitutional amendments to
the voters. Together, the proposed amendments were substantially the same as the proposals
the legislature had previously defeated. If they had been adopted, the amendments would
have shortened the constitution by 75 percent through reorganization and by eliminating
statute-like detail and deadwood.
The legislature would have been strengthened by annual sessions, and a salary commission
would have set the legislators’ salary. Although limited to two terms, the governor would have
been designated as the chief planning officer and given removal powers and certain powers
of fiscal control. The court system would have been unified and its administrative procedure
simplified. Local governments would have operated under broader home-rule provisions, and
counties would have been authorized to pass general ordinances and to abolish unneeded
offices.
Opponents’ chief arguments were against more power for
IMAGE 3.4 This HPM graphic shows the ineqthe legislature, greater government costs, and the possibiluity in Texas public school funding from district
ity of an income tax—all of which were serious concerns for
to district and compares the amount of spending
in each district to the national norm. Notice that
many Texans. Because the legislature had written the proposschool districts in West Texas tend to spend far
als, it was easy for the Texas voter to see such things as annual
more than the national average in sharp contrast
sessions and flexibility concerning their salaries as a “grab for
to the districts around larger cities such as Houspower” that would substantially increase government expenton, Dallas, San Antonio, Ft. Worth, and El Paso.
ditures. Despite an emotional campaign, only 15 percent of
Suburban districts in these metro areas are about
as underfunded as their urban district neighbors.
voting age Texans cast ballots in the election, and they overwhelmingly rejected all of the proposed amendments.
A more recent attempt to revise the state constitution did
not get so far as the 1972–1975 efforts. In 1999, Representative Bob Junell and Senator Bill Ratliff supported a revision
that would have raised legislative pay, lengthened legislative
terms, given the governor more appointive powers, and provided for a merit system for state judges. Their proposals died
in legislative committee.
Applying What You Have
Learned About the Texas
Constitution
LO 3.4 Apply what you have learned about the
Texas Constitution.
You learned that the Texas constitution guarantees a constitutional right to free public schools and imposes a duty on
the legislature to provide a suitable and efficient system of
public schools. Houston Public Media (HPM) has done indepth reporting on the continuing inequity in Texas public
school funding despite this constitutional requirement as is
shown in Image 3.4 which highlights the wide variance in
spending per student across the state’s more than one thousand independent school districts. We asked Holly McIntush
to give you further insight as to why her group sued the state
to obtain enforcement of this constitutional provision.
Holly McIntush is one of the three members of the
Thompson & Horton LLP lead legal team for the Fort Bend
★ CTQ
Why are urban and suburban school
districts underfunded compared to
more rural districts? Would spending
more money on education result in
improved educational outcomes?
74
3
The Texas Constitution in Perspective
ISD group that represented 81 school districts (Fort Bend ISD et al.) in their school finance
lawsuit against the State of Texas. She previously held positions in the Texas House of Representatives and in the Texas Attorney General’s Office.
Despite McIntush’s efforts, the Texas Supreme Court upheld the constitutionality of the
state’s system of school finance and declined to get involved in making school finance policy.
The court called the system undeniably imperfect and said the state’s 5 million school children deserve better, but “we decline to usurp legislative authority by issuing reform diktats
from on high, supplanting lawmakers’ policy wisdom with our own.”4
After you have read her essay, we will ask you to consider the difficulty the courts have
in closing the gap between theory and practice as they apply such general constitutional language as “suitable” and “efficient.” We will ask you to reflect on why the legislature has failed
in the eyes of many, including a majority of the state’s school districts, to provide adequate
funding for public schools and why school districts felt they had no recourse but the legal
system through which to seek meaningful implementation of their residents’ constitutional
rights.
★
POLITICS IN PR ACTICE
The Constitutional Right to Education
by Holly McIntush
Attorney & Member of the Fort Bend ISD Group Legal Team
Since its inception, Texas has recognized that an “educated and enlightened” populace is
fundamental to “the continuance of civil liberty, or the capacity for self-government.”
At the 1875 Constitutional Convention, the chairman of the education committee told his
fellow delegates, “It is for the general welfare of all, rich and poor, male and female, that the
means of a common school education should, if possible, be placed within the reach of every
child in the State.” The Constitution adopted the following year puts it this way:
A general diffusion of knowledge being essential to the preservation of liberties and
rights of the people, it shall be the duty of the Legislature of the State to establish and
make suitable provision for the support and maintenance of an efficient system of public free schools. (Tex. Const. art. VII, § 1)
This provision has been the subject of seven Texas Supreme Court decisions over the past
three decades as attorneys debate the concrete meaning of the terms “general diffusion of
knowledge,” “suitable provision,” and “efficient system.”
Further complicating the legal debate is that the constitutional duty to meet these standards
is imposed on the state—yet responsibility for actually doing so has fallen on 1,026 local
school districts. Each of those school districts have varying student populations and varying
levels of property tax revenue available to fund their efforts. The Texas Supreme Court has
held that the Legislature may use local districts to meet its constitutional obligation if and
only if the legislature provides all districts with sufficient resources to enable them to provide
“a general diffusion of knowledge” at similar property tax rates.
The Texas Supreme Court has also said that the legislature must ensure that the public education system adapts to meet “changing times, needs, and public expectations.” Neither the
Chapter Summary
75
student population nor the needs of the state are the same today as they were in 1876, or
1976, or even 2006. The number of students living in poverty has skyrocketed—growing by
more than 773,000 students between 2006 and 2016. Texas students speak a dizzying array
of home languages—93 in Richardson, 82 in Alief, 64 in Austin, more than 40 in Amarillo,
and 35 in Abilene. The types of jobs available to students upon graduation, and the skills and
knowledge needed to perform those jobs, are changing just as quickly.
The Texas legislature has responded by demanding that schools produce graduates that are
college or career-ready and demanding that students pass more and harder tests in order to
move to the next grade level. However, the legislature has refused to determine how much
it actually costs school districts to enable their changing student population to meet those
demands. In fact, the Texas Education Code has required the Legislative Budget Board to
regularly calculate the cost of meeting the rising standards and advise the legislature on how
to adjust its formulas; but it has not done so in more than a decade. Instead, the legislature
continues to distribute money through antiquated formulas that have not been updated since
before the fall of the Berlin Wall.
Thirty years of school finance litigation have taught us that school finance formulas cannot
remain static as the state’s population, economy, and academic needs change. Yet the legislature has done just that time and again. Every major school finance reform of the past three
decades has come after the Texas Supreme Court has stepped in to enforce the constitutional
requirements.
As I write this essay, we are waiting on the Court to do so once more. More than half of
the state’s school districts sued the state, seeking the resources they need to educate today’s
students to today’s needs and public expectations. The trial court ruled in favor of the school
districts. The Texas Attorney General’s Office appealed and asked the state Supreme Court
to abandon three decades of legal precedent and wash its hands of school finance entirely.
Millions of Texas school children, however, are counting on the Court to fulfill its own obligation: to interpret and enforce the Texas Constitution.
1. How can the courts determine the meaning of general constitutional language such as
“suitable” and “efficient”? Should the courts be making decisions with such a sweeping
impact as the system of financing public education, or should public policy in such a
broad and critical area like this be determined by the state legislature?
2. Why has the state legislature failed to provide adequate and equitable funding for Texas
public schools? Why were the state’s school districts forced to turn to the courts in their
quest for constitutionally adequate and equitable school funding?
★ Chapter Summary
LO 3.1 Explain the origins of the Texas Constitution and
the Constitutional Convention of 1875. The first Texas Constitution combined elements drawn from the U.S. Constitution and
the constitutions of the states from which the Anglo settlers had
migrated, but it also included unique elements based on the state’s
experiences as a Spanish colony and Mexican state. The current
constitution was written in the period following Reconstruction.
Most Anglo Texans viewed the Reconstruction state government
as abusive and tyrannical. In 1875, a state constitutional convention reacted to the Reconstruction regime by limiting state government in almost every imaginable way.
LO 3.2 Describe the major constitutional structures,
functions, and limits of Texas’s legislative, executive, and
judicial branches. The Texas Constitution includes a bill of rights
that is more expansive than those in most state constitutions. It
76
3
The Texas Constitution in Perspective
follows the national pattern by establishing a separation of powers
between legislative, executive, and judicial branches and establishes a system of checks and balances that allows each branch to
check or limit the powers of the others.
In addition to the limits that are common to the U.S. Constitution and all state constitutions, the Texas constitution also strictly
limits the legislature with short, infrequent sessions, low salaries,
and statute-like details that the legislature cannot change without
amending the constitution. The governor is limited in his or her
role as chief executive because Texas has a plural executive
system that includes many independently elected executives
over whom the governor has no control. Texas has divided power
between two final courts of appeals, and judges are elected in
partisan elections.
LO 3.3 Explain the process of amending and revising
the Texas Constitution and the reasons that amendments are frequently necessary. Constitutional amendments are proposed by two-thirds of each chamber of the state
legislature and must be ratified by a majority of voters before
going into effect. The Texas Constitution has been amended
more than most, but efforts to systematically revise the state constitution have failed.
The constitution’s critics argue that a constitution should
establish essential governing principles and structures, but
some state constitutions, like that of Texas, also go beyond those
essentials to establish many details of routine government and,
as a consequence, require frequent amendment to reflect new
realities.
LO 3.4 Apply what you have learned about the Texas
Constitution. You looked at the Texas constitutional right to education through the eyes of one of the lead attorneys in the latest of
a series of lawsuits brought to force reform of the state’s system of
public school finance. You considered the practical implications of
applying general constitutional language to the realities of today’s
public schools, and you evaluated the role of the courts in implementing broad changes in public policy.
Key Terms
bicameral, p. 63
biennial regular sessions,
p. 65
budgetary power, p. 67
checks and balances, p. 63
common law, p. 57
community property, p. 57
deadwood, p. 66
directive power, p. 67
homestead, p. 57
indirect appointive
powers, p. 66
initiative, p. 68
legitimacy, p. 57
line-item veto, p. 67
long ballot, p. 58
partisan elections, p. 67
plural executive, p. 66
pocket veto, p. 67
popular recall, p. 68
proposal of constitutional
amendments, p. 70
ratification of constitutional amendments, p. 71
reduction veto, p. 67
referendum, p. 68
removal powers, p. 66
separation of powers, p. 63
special session, p. 65
statutory law, p. 62
suffrage, p. 68
writ of habeas corpus, p. 63
Review Questions
LO 3.1 Explain the origins of the Texas Constitution
and the Constitutional Convention of 1875.
• How did Texas’s origins as a Spanish colonial posses•
•
sion and a Mexican state influence the drafting of the
state’s first constitutions?
Evaluate the evolution of the state’s constitutions
from independence through the 1875 Constitutional
Convention.
What are the historical reasons for the restrictive
nature of the Texas Constitution? What benefits did
the state constitution’s writers hope to achieve by
limiting state government?
LO 3.2 Describe the major constitutional structures,
functions, and limits of Texas’s legislative, executive,
and judicial branches.
• How does the Texas Constitution differ from the constitutions of other states and the U.S. Constitution?
• Describe the constitutional organization of each of
the three branches of Texas government.
• Discuss the major constitutional provisions that
restrain each branch of state government. What are
the consequences of these restraints?
LO 3.3 Explain the process of amending and revising
the Texas Constitution and the reasons that amendments are frequently necessary.
• How is the state’s constitution amended?
• Why does Texas amend its constitution so frequently?
• How vibrant is voter participation in the constitutional amendment ratification process?
• What are the strengths and weaknesses of the Texas
Constitution? Should the Texas Constitution be substantially revised? Why or why not?
Think Critically and Get Active!
77
Think Critically and Get Active!
Explore different views of constitutional rights and
liberties.
Conservative Groups
• The National Rifle Association at www.nra.org
(@nra) supports the right to keep and bear arms.
• Students for Concealed Carry on Campus at
concealedcampus.org (@concealedcampus) has
fought to reduce restrictions on carrying firearms on
college campuses.
• Texas Right to Life at www.texasrighttolife.org
(@TXRightToLife) is a pro-life group.
• Texans for Fiscal Responsibility at
www.empowertexans.com (@EmpowerTexans) is
a prominent conservative activist organization in the
state.
• Texas Public Policy Foundation at www.texaspolicy
.com (@TPPF) is a leading conservative Texas think
tank.
Liberal Groups
• The Brady Campaign at www.bradycampaign.org
(@bradybuzz) advocates for gun control.
• NARAL Pro-Choice Texas at www.prochoicetexas
.org (@naraltx) supports abortion rights.
• Texas Coalition to Abolish the Death Penalty at
www.tcadp.org (@TCADPdotORG) fights capital
punishment.
• The American Civil Liberties Union of Texas at
www.aclutx.org (@ACLUTx) advocates for the
protection of civil liberties.
• The Center for Public Policy Priorities at
forabettertexas.org (@CPPP_TX) is a leading
liberal Texas think tank.
Sample the Texas Constitution. The complete text of
the Texas Constitution is at www.constitution.legis
.state.tx.us. In the index, click on Article 3, “Legislative
Department.” Click on Section 29 and notice that even
the enacting clause for legislation is included in the constitution. Click on Article 16, Section 6 and notice the
level of detail. Read the deadwood provision in Article 9,
Section 14. Contrast the legislative and executive articles
(Articles 3 and 4) of Texas’s Constitution with those of
Illinois (Articles 4 and 5) at www.ilga.gov/commission/
lrb/conmain.htm.
Evaluate how well Texas limits borrowing. Article 3,
Section 59 of Texas’s Constitution severely limits state
debt. Research how effective these restrictions have been
by comparing per capita debt among the 50 states at
www.taxfoundation.org/blog/annual-release-factsfigures-how-does-your-state-compare.
Play a role in the continual rewriting of the state’s
fundamental law. Vote in Texas elections to ratify or reject
state constitutional amendments. Note that proposals are
sometimes detailed and confusing, and beware of biased
special-interest group television and Internet ads describing
them. Good amendment summaries and analyses written
by the nonpartisan Texas Legislative Council can be found
among the publications at www.tlc.state.tx.us.
Read constitutional amendments that have been proposed by the Texas Legislature, their legislative history,
and the level of popular support for them at www.tlc
.state.tx.us/docs/amendments/Constamend1876.pdf.
★ PRQ
Are the proposed constitutional
amendments that Texans voted on
too complex for the average voter to
decide? Should you and other voters
be called upon to make these sorts of
decisions, or should you leave these
matters to the legislature?
4
Voting and Elections
Voters sometimes wait in long lines to cast their ballots. In this chapter, you will explore who votes in which elections and
how campaigns affect their votes.
John Davenport/Newscom/ZUMA Press/San Antonio/Texas/U.S.
Learning Objectives
LO 4.1 Explain why voter turnout is low in Texas.
LO 4.2 Describe the types of Texas elections.
LO 4.3 Understand how elections are administered in Texas.
LO 4.4 Identify the factors that advantage (or disadvantage) candidates in Texas elections.
LO 4.5 Apply what you have learned about voting and elections in Texas.
Political Participation
79
T
exas has a republican form of government, which means that it is a representative democracy. A representative democracy is based on popular sovereignty, which gives ultimate
governing authority to the people who elect officials to act on their behalf. It took many
centuries of human struggle to achieve this enviable form of government in Texas and in the
United States, but many of the world’s people unfortunately still lack the opportunity for
meaningful input in their political systems.
Texas government is structured on the principles of Jacksonian democracy. During the
period when genuine democracy began to take root in the United States, between the 1820s
and 1840s, those who believed in rule by the people held to the notion that the more officials
who are elected, the more democratic the system is.
Thus, Texas has a very long ballot, and voters must inform themselves about the qualifications of the large number of candidates who compete for nomination in the party primaries
in the spring of even-numbered years. Then, in November, roughly 4,200 of these party
nominees ask the voters to elect them in the general election to numerous county, state, and
national offices. At other times during the year, many thousands more are elected in nonpartisan municipal and special district elections as well.
Texans have many opportunities to assert control over their government, and most Texans
claim allegiance to democratic ideals, even if those principles have not been perfectly realized in practice. Historical voting restrictions have now been removed, but voter turnout in
Texas still remains quite low compared to other states and other nations. Texans’ traditional
political culture does not put a premium on active citizen participation, and citizens are less
likely to vote when one party’s candidates are almost guaranteed to win all major state offices.
Citizens on the margins of society rarely participate in political activities, just as they are less
involved in other organized activities.
Our political system only represents those who actually participate—the rest of the people
forfeit their influence. Meanwhile, low-information voters look to the media, activists, and
political operatives for cues to make their voting decisions. The Texas political system, therefore, gives disproportionate influence to those who do actively participate.
Political Participation
LO 4.1 Explain why voter turnout is low in Texas.
Voting in elections is the most basic and common form of political participation. Many
people take part in other ways, such as discussing political issues with friends and co-workers,
writing letters to local representatives or to newspaper editors, distributing campaign literature or contributing money to a campaign, or placing bumper stickers on cars. Some people
are members of interest groups, whether neighborhood or trade associations, serve on political
party committees, or act as delegates to conventions. Yet others participate in demonstrations
or sit-ins, such as the flurry of tea party protests.
The Participation Paradox and Why People Vote
Elections, of course, are the defining characteristic of representative democracies. It is
through our votes that we hold elected officials accountable. After all, votes are what matter
to politicians, at least those interested in winning and holding office. If we vote—and reward
and punish elected officials for what they do while in office—politicians have an incentive
to do what we want. If we do not vote, elected officials are largely free to do what they want.
Clearly, voting is important in a representative democracy.
The problem is that a single individual’s vote is rarely decisive because few elections
are decided by a single vote. This may leave you wondering: Why do people vote? Among
political scientists, this is known as the participation paradox. The point of this paradox
participation paradox
The fact that citizens
vote even though
a single vote rarely
decides an election.
80
4 Voting and Elections
is not to suggest that people should not vote but rather to highlight that they vote for other
reasons.
Who Votes?
Over the years, political scientists have learned quite a lot about why people go to the polls.
It is now clear that a relatively small number of demographic and political variables are especially important.1 The most important demographic variables are education, income, and
age. The more education a person has, the more likely the person is to vote. Income is also
a factor in voting; even among people with the same levels of education, those with higher
incomes are more likely to vote. Age also matters. As people grow older, they are more likely
to vote, at least until serious age-related health problems begin to set in. Why do these factors matter? The answer is straightforward: People who are educated, have high incomes,
and are older are more likely to care about and pay attention to politics. Thus, they are more
likely to vote.
In addition to demographic factors, certain political factors influence the likelihood of
voting, especially one’s expressed interest in politics and intensity of identification with a
political party. The more a person is interested in politics,
the more likely the person is to vote. The effect is fairly obvious but nevertheless quite important. Consider that a person
Did You Know? Although voting is the most
who does not have a lot of education or income is still very
common form of political participation, a much smaller
likely to vote if he or she has a strong interest in politics.
number of Americans participate in other ways. In
2012, surveys indicate that 16 percent wore a button
Identification with either of the major political parties
or displayed a bumper sticker, 13 percent donated
also makes a person more likely to vote. This pattern reflects
money to a political party or campaign, 6 percent
the fact that strong party identifiers, on average, care a lot
attended a political meeting or rally, and 4 percent
2
more about who wins than people who do not identify with
worked for a political party or candidate.
a party. It also reflects the mobilization of identifiers by the
political parties—that is, the more one identifies with a
party, the more likely it is that the person will be contacted
by the party and its candidates during election campaigns.
In one sense, deciding to vote is much like deciding to attend a sporting event, such
as a professional baseball game. We do not go to a game to affect the outcome. We go for
other reasons, because we like baseball and care about it. The same is true for voting; education, income, age, interest, and party identification are important indicators of our desire to
participate.
Of course, other factors are also important for explaining electoral participation, but the
small set of demographic and political variables tells us quite a lot. With this information,
we can pretty much determine whether a person will or will not vote in a particular election.
We also can account for most of the differences in turnout among different groups, such as
African Americans, Anglos, Asian Americans, and Latinos. This issue is picked up later in
the chapter.
The Practice of Voting
The legal qualifications for voting in Texas are surprisingly few and simple. Anyone who is
a citizen of the United States, at least 18 years of age, and a resident of the state is eligible to
register and vote in Texas. The only citizens prohibited from
voting are those who have been declared “mentally incompetent” in formal court proceedings and those currently servDid You Know? Before 1926, some states
ing a sentence, parole, or probation for a felony conviction.
allowed noncitizens to vote.
Establishing residence for voting is no longer a matter of
living at a place for a specified time. Residence is defined
Political Participation
primarily in terms of intent; that is, people’s homes are where they intend them to be. Meeting age, citizenship, and residency qualifications does not mean that a person can simply walk
into the voting booth on election day. Citizens must register in order to vote, but states may
no longer require long waiting periods between registering and becoming eligible to vote.
U.S. Supreme Court rulings allow only a short period of time (30 days maximum) in which
the application is processed and the registrant’s name is entered on the rolls.
Texas law allows a citizen to register in person or by mail any time of the year up to 30
days before an election in which they wish to vote. Since the passage of federal “motor voter”
legislation, a person can also register when obtaining or renewing a driver’s license; indeed,
every person renewing a driver’s license is asked whether he or she wants to register to vote.
The secretary of state makes postage-free registration applications available at every county
clerk’s office and at various other public offices. Spouses, parents, or offspring also can register the applicant, provided that they are qualified voters.
Once they register, voters are automatically sent renewals at their address of record, but
these renewals cannot be forwarded to new addresses. Thus, voters are permanently registered
unless their nonforwardable certificate is returned by mail to the voter registrar.
Names on returned certificates are stricken from the eligible voters list and placed on a
strike list. The strike list is attached to the list of voters for each precinct; for three months,
the previously registered voters whose names are on the strike list can vote in their old
precincts if they have filled out a new voter registration card for the new residence. They
can vote, however, only for those offices that both residences have in common. Thus, the
person who has moved can vote on at least a portion of both the first and runoff primary
ballots.
Coroners’ reports, lists of felony convictions, and adjudications of mental incompetence
are also used to purge the list of eligible voters. Anyone can purchase the computer-generated
voter list for each county in the state. Political parties and candidates make extensive use of
voter lists when trying to identify likely voters during election campaigns.
Texas does not make it as easy to register as some states that have gone so far as to allow for
“same-day registration” in which voters can register at the polls on election day. Several states
such as California and Oregon automatically register eligible citizens who have a driver’s
license unless they object. North Dakota has no registration at all. There, one just walks in,
shows identification, and votes.3
Once registered, voting in Texas has been fairly easy. Texas was one of the first states to
institute early voting, which allows people to vote at a number of different sites before election
day. Indeed, many people who are unable to vote on election day can vote in advance by mail.
Consider also that, in counties with a 5 percent or greater language minority, Texas requires
that ballots and election materials be printed in other languages in addition to English.
However, Texas has recently made it more difficult to vote. In 2011, the legislature enacted
one of the strictest voter photo identification (ID) laws in the nation requiring voters to show
one of seven forms of photo identification listed in the 2014 Texas Secretary of State voter
education poster displayed in Image 4.1. In order to vote, citizens had to show a Texas driver’s
license, Texas ID card, Texas concealed handgun license, U.S. military ID, U.S. passport,
U.S. citizenship certificate containing a photograph, or a Texas election identification certificate that the state provides for free.
Its defenders argued that the Texas voter ID law was intended to prevent voter impersonation and assure integrity in the voting process. Opponents argued that there had been
very few documented cases of voter impersonation before the Texas voter photo ID law was
adopted while 600,000 eligible Texas voters lacked these forms of identification. Some suspected that the Republican-controlled legislature passed the law as a politically motivated
effort to suppress minority voting in the state. Regardless of the political motivation for
the law, most observers believed it would dampen turnout, particularly among students and
81
82
4
Voting and Elections
IMAGE 4.1 Texas enacted one of the strictest voter ID laws in the nation. The
Texas Secretary of State used this poster during the 2014 election cycle to educate
voters about the ID requirement that federal courts declared discriminatory. Young,
minority, and elderly voters are less likely to have one of the seven forms of government-issued photo identification that the law required.
★ CTQ
Was the voter ID law a reasonable effort to prevent voter fraud?
Or was the law’s underlying intent to discourage minorities from
voting, given that there had been extremely few documented cases
of voter impersonation before its passage?
ethnic or racial minorities who are more likely to support Democrats. It thus was more likely
to hurt Democratic candidates, and there is some evidence that this was in fact the case during the 2014 election in Texas Congressional District 23.4
The Texas voter ID law also raised legal issues as to whether the law had a racially discriminatory intent and effect. Opponents brought suit in federal court to have the ID law
declared illegal and discriminatory under the federal Voting Rights Act. The issue bounced
back and forth between federal district courts, the Fifth Circuit of Appeals, and the U.S.
Supreme Court and was settled, at least for the 2016 election cycle, when the state of Texas
agreed to allow voters without state approved forms of ID to sign a citizenship affidavit
and present evidence of their residence such as a voter registration card, utility bill or bank
statement.
voter turnout
The proportion of
eligible Americans
who actually vote.
Voter Turnout in the United States and in Texas
Making registration and voting easier was expected to result in increased voter turnout—
the proportion of eligible Americans who actually vote. Such has not been the case; indeed,
Political Participation
83
FIGURE 4.1 How Many People Vote in the United States? Presidential
Election Turnout, 1932–2016
Here we see that turnout declined in the early 1970s and has not changed much
since. A little more than 50 percent of the voting-age population now vote in presidential elections.
65
Percentage
60
1960: Kennedy vs. Nixon,
the highest turnout rate
in generations (63.1%)
1972: First election after
voting age lowered from
21 to 18. (55.5%)
1996: B. Clinton v. Dole,
the lowest turnout rate
since 1924 (49.1%)
55
50
45
0
1932 ’36 ’40 ’44 ’48 ’52 ’56 ’60 ’64 ’68 ’72 ’76 ’80 ’84 ’88 ’92 ’96 ’00 ’04 ’08 ‘12 2016
Year
★ CTQ
Describe the groups that are most likely to vote. Does one party
or the other benefit more when voter turnout is high?
Source: Cengage Learning
the reverse has been true. Since 1960, turnout has actually declined. This is not to suggest
that the actual number of voters has diminished. In fact, the number has steadily increased,
from 70.6 million votes for president in 1964 to an estimated 129 million votes in 2012—an
increase of 83 percent. However, the number of voting-age Americans increased from 114.1
million to 241 million during the same period—an increase of more than 100 percent. Thus,
the voting-age population (VAP), the total number of persons in the United States who are
18 years of age or older, has grown at a much faster rate than the actual voting population.5
Figure 4.1 shows voter turnout in presidential elections from 1932 to 2016. Voter turnout
peaked in 1960 and has not reached that all-time high since. In 2016, turnout among the
VAP was 53.8 percent.6
There are two main reasons for the decrease in voter turnout in the United States after the
1960s. The first reason can be traced to the Twenty-Sixth Amendment, which lowered the
voting age from 21 to 18 in 1972. The amendment was passed at the height of the Vietnam
War, with proponents arguing that a person who could be drafted and sent off to war should
be able to vote. By extending the vote to 18- to 20-year-old citizens, the amendment expanded
the eligible voting population. As we have already seen, however, these young people are less
likely to vote than are older persons—since they were given the right to vote, citizens in the
18- to 20-year-old age group have rarely posted turnout rates as high as 40 percent, even in
presidential elections. Thus, adding the age group to the lists of eligible voters in 1972 slightly
reduced the overall turnout rate.
Second, identification with the two major political parties dropped after the 1960s, and
more than one-third of all Americans now consider themselves independents—that is, unattached to either of the parties.7 (The proportion is greater for younger voters.) As noted
voting-age
population (VAP)
The total number of
persons in the United
States who are 18
years of age or older.
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4 Voting and Elections
earlier, these voters are less likely to vote than are partisans.8 A lot of independents do lean
toward one of the parties, but in 2016 about 10 percent of U.S. adults were “pure” independents, not leaning toward either major party. This is important because leaners behave a lot
like partisans in the voting booth, whereas pure independents are considered more persuadable and so potentially more critical in close elections.
Turnout in American general elections is significantly lower than it is in other countries
that are ranked as among the most democratic in the world. Figure 4.2 shows that in these
democracies, voter turnout is on average approximately 15 percent higher than in the United
FIGURE 4.2 Voter Turnout Among the World’s Most Democratic Nations
The United States is most similar to Chile, Poland, and South Africa.
United States
53.8%
78.9%
Australia
Austria
65.9%
Belgium
87.2%
Canada
62.1%
Chile
53.7%
Costa Rica
64.4%
Czech Republic
60.0%
Denmark
80.3%
France
71.2%
Germany
66.1%
Ireland
58.0%
Israel
76.1%
Italy
68.3%
Japan
52.0%
Netherlands
71.0%
New Zealand
72.4%
Norway
77.9%
Poland
53.8%
Portugal
61.8%
Slovakia
59.4%
South Africa
53.8%
Spain
64.4%
Sweden
82.6%
Switzerland
38.6%
Taiwan
65.8%
United Kingdom
60.5%
Uruguay
98.3%
0
20
40
60
80
Voting Turnout (percent of voting-age population)
★ CTQ
Why is turnout so far below what we observe in other democracies? Should governments adopt policies that encourage
people to vote? Why or why not?
Source: International Institute for Democracy and Electoral Assistance; Freedom House.
100
Political Participation
States. Interestingly, American political attitudes seem more conducive to voting than those
in countries with far higher turnouts. Low voter turnout in the United States is caused by
other factors, including institutional structures (primarily the strength of political parties)
and the fact that most states require voters to register—in some nations, citizens are automatically registered to vote when they meet age requirements.9
Reasons for Low Voter Turnout in Texas
Most Texans probably think that Texas is in the mainstream of American society. Why, then,
is there such a difference between Texas and other urbanized and industrialized states in its
political behavior? Why does Texas compare more closely with states of the Deep South in
voter turnout? The answer may lie in its laws, socioeconomic characteristics, political structure, party competition, and political culture.
Legal Constraints Traditionally, scholars interested in the variation in turnout
across the American states have focused on laws regulating registration and voting. Clearly,
the most important of these laws were the restrictions on who may vote, such as the poll
tax, property ownership requirements, or the outright exclusion of African Americans and
women.
Although these restrictions disappeared some time ago, other barriers to registration and
voting persisted, and some remain in effect today.11 One can ask: Does a state promote political participation by setting the minimum necessary limitations and making it as convenient
as possible for the citizen to vote? Or does a state repeatedly place barriers on the way to the
polls, making the act of voting physically, financially, and psychologically as difficult as the
local sense of propriety will allow? There is no doubt into which category Texas once fell—
the application has been uneven, but historically Texas was among the most restrictive states
in its voting laws.
IMAGE 4.2 When former State Senator Wendy Davis ran against former Attorney General
(a)
★ CTQ
(b)
Why do so few voters turn out in nonpresidential elections in Texas? Would
a larger number of Texans cast their ballots for governor if the election were
held at the same time as the presidential election?
Marjorie Kamys Cotera/Bob Daemmrich Photography/Alamy
Greg Abbott for the governorship in 2014, approximately 24 percent of the voting-age population turned out to vote in the election.
85
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4
Voting and Elections
How Does Texas Compare?
Voter Turnout in the State and Nation
Table 4.1 shows that voter turnout in Texas (as in most of
the South) has remained fairly stable at levels far below
the national average. In the presidential election of 2016,
for example, Texas turnout was 43.0 percent, about
11 percent below the rest of the nation. Texas had the
second lowest turnout rate of any state in the nation, only
above Hawaii.
In midterm elections, Texas’s turnout has bounced
around from election to election but is consistently lower
than in most other states (see Table 4.2). The turnout rate
typically has been between 20 and 30 percent; Louisiana
has often vied with Texas for the dubious honor of the
lowest turnout in the nation.10 In 2014, voter participation was only 23.9 percent, lower than in any other state.
The very low turnout in midterm elections heightens the
impact of the most politically active people in Texas, who
consistently turn out to vote. (Recall our earlier discussion
of “who votes.”)
TABLE 4.1 Percentage of the Voting-Age Population Voting: Presidential General Elections,
1996–2016
1996
2000
2004
2008
2012
2016
United States
49.1
51.3
55.4
56.9
53.6
53.8
Texas
41.3
43.1
45.5
45.6
41.7
43.0
Difference (Texas vs.
United States)
7.8
8.2
9.9
11.3
11.9
10.8
Rank of Texas among the
50 states
48th
48th
49th
49th
49th
49th
United States Elections Project and the Texas Secretary of State.
TABLE 4.2 Percentage of the Voting-Age Population Voting: Nonpresidential General
Elections, 1994–2014
1994
1998
2002
2006
2010
2014
United States
36.0
36.4
36.2
37.1
37.8
33.9
Texas
31.3
26.1
28.8
25.8
26.7
23.9
Difference (Texas vs.
United States)
4.7
10.3
7.4
11.3
11.1
10.0
Rank of Texas among the
50 states
45th
47th
49th
50th
50th
50th
United States Elections Project and the Texas Secretary of State.
Political Participation
87
FOR DEBATE
★ CTQ
What factors explain why Texas has
such low voter turnout compared to
other states?
★ CTQ
How would a higher voter turnout
affect election results in Texas?
★ CTQ
Should the government take steps to
encourage more people to vote? Why
or why not?
However, nearly all of these restrictions have been changed by amendments to the U.S.
Constitution, state and national laws, rulings by the U.S. Department of Justice, and judicial
decisions. Even a cursory examination of these restrictions and the conditions under which
they were removed makes one appreciate the extent to which Texas’s elections were at one
time closed. Consider these changes in Texas voting policies:
1. Poll tax. The payment of a poll tax as a prerequisite for voting was adopted in 1902. The
cost was $1.75 ($1.50 plus $0.25 optional for the county) and represented more than a
typical day’s wages for some time. Many poor Texans were kept from voting. When the
Twenty-Fourth Amendment was ratified in 1964, it voided the poll tax in national elections. Texas and only one other state kept it for state elections until it was held unconstitutional in 1966 (United States v. Texas, 384 U.S. 155).
2. Women’s suffrage. An attempt was made to end the denial of the ballot to women in 1917,
but the effort failed by four votes in the Texas legislature. Women were allowed to vote in
the primaries of 1918, but not until ratification of the Nineteenth Amendment in 1920
did full suffrage come to women in Texas.
3. White primary. African Americans were barred from participating when the first party
primary was held in 1906. When movement toward increased participation seemed likely,
Texas made several moves to avoid U.S. Supreme Court rulings allowing African Americans to vote. Not until 1944 were the legislature’s efforts to deny African Americans
access to the primaries finally overturned (Smith v. Allwright, 321 U.S. 649).
4. Military vote. Until 1931, members of the National Guard were not permitted to vote.
Members of the military began to enjoy the full rights of suffrage in Texas in 1965, when
the U.S. Supreme Court voided the Texas constitutional exclusion (Carrington v. Rash,
380 U.S. 89).
5. Long residence requirement. The Texas residence requirement of one year in the state and
six months in the county was modified slightly by the legislature to allow new residents to
vote in the presidential part of the ballot, but not until a 1972 ruling of the U.S. Supreme
Court were such requirements abolished (Dunn v. Blumstein, 405 U.S. 330).
6. Property ownership as a requirement for voting in bond elections. Texas held to this requirement until the U.S. Supreme Court made property ownership unnecessary for revenue
bond elections in 1969 (Kramer v. Union Free District No. 15, 395 U.S. 621), and for tax
elections in 1969 (Cipriano v. City of Houma, 395 U.S. 701) and in 1975 (Hill v. Stone,
421 U.S. 289).
7. Annual registration. Even after the poll tax was voided, Texas continued to require voters to register every year until annual registration was prohibited by the federal courts in
1971 (Beare v. Smith, 321 F. Supp. 1100).
8. Early registration. Texas voters were required to meet registration requirements by
January 31, earlier than the cutoff date for candidates’ filings and more than nine months
before the general election. This restriction was voided in 1971 (Beare v. Smith, 321 F.
Supp. 1100).
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4 Voting and Elections
9. Jury duty. Texas law provided that the names of prospective jurors must be drawn from
the voting rolls. Some Texans did not like to serve on juries, and not registering to vote
ensured against a jury summons. (Counties now use driver’s licenses for jury lists.)
Texas employed almost every technique available except the literacy test and the grandfather clause12 to deny the vote or to make it expensive in terms of time, money, and aggravation. This is not the case today. Most barriers to voting in Texas have been removed and, as
was mentioned previously, the legislature has instituted a number of provisions that make
voting easier than in most states. As noted earlier however, some new barriers have been
added, most notably, the voter ID law that went into effect for the November 2013 election.
Although the law surely did not boost turnout, it is unclear how much it depressed it. Putting
aside voter ID, the laws in Texas mostly explain why turnout was low in the past and why,
with the relaxing of restrictions, it has increased somewhat since 1960. The laws do not help
us understand why turnout in Texas has remained low in recent years. For this, we need to
look elsewhere.
Demographic Factors Texas is known as the land of the “big rich” cattle barons
and oil tycoons. What is not so well known is that Texas is also the land of the “big poor”
and that almost 5 million people live in poverty here. Although nationally the proportion of
people living below the poverty level in 2014 was 14.8 percent, in Texas the proportion was
17.2 percent. Among African American and Latino Texans, almost 25 percent have incomes
below this level. Of those individuals in Texas living in poverty, more than one-third are
children. Understandably, formal educational achievement is also low. Of Texans older than
25 years of age, one in four has not graduated from high school. Among African Americans,
the ratio is just less than one of three, and among Latinos, it is almost one out of two.13
Given that income and education are such important determinants of electoral participation, low voter turnout is exactly what we should expect in Texas. Because income and education levels are particularly low among African Americans and, especially, Latinos, turnout is
particularly low for these groups. Voting by Texas minorities is on the rise, however, and this
has led to much greater representation of both groups in elected offices, as we will see. These
trends should continue as income and education levels among minorities increase.
Political Structure Another deterrent to voting in Texas is the length of the ballot
and the number of elections. Texas uses a long ballot that provides for the popular election
of numerous public officers (including many that some critics believe should be appointed).
In an urban county, the ballot may call for the voter to choose from as many as 150 to 200
candidates vying for 50 or more offices. The frequency of referendums on constitutional
amendments contributes to the length of the ballot in Texas. Voters are also asked to go to the
polls for various municipal, school board, bond, and special-district elections. Government is
far more fragmented in Texas than in other states, and the election of so many minor officials
may be confusing and frustrating for voters.
Party Competition The competitiveness of elections is important to voters. The
closer the race, the greater the interest, attention, and participation during the campaign and
on election day itself. The problem for Texas and other southern states is that general elections between the two parties are not competitive, and this has been true for a long time even
when the party in power changed. In the past, Texas was a one-party Democratic state, and
this held until the late 1980s. Since the late 1990s, the Republicans have dominated statewide
races. With rare exceptions, then, the races between candidates of the two parties in November elections in Texas have not been competitive. This dampens voter interest and turnout.
Political Participation
Political Culture Insights into voter participation levels have been derived from the
concept of political culture, which, as defined in Chapter 1, describes the set of political
values and beliefs that are dominant in a society. Borrowed from social anthropologists, this
concept has been found to be applicable to all political systems, from those of developing
countries to modern industrial democracies. It has been especially useful in the study of
American politics, where federalism has emphasized the diversity among regions, states, and
communities—a diversity that cries out for some approach that can effectively explain it.
The American political culture is actually a mix of three subcultures, each prevalent in at
least one area of the United States.14 The moralistic culture is a product of the Puritan era and
is strongest in New England. The traditionalistic culture comes to us via the plantation society
of the Deep South. The individualistic culture was born in the commercial centers of Middle
Atlantic states, moving west and south along the Ohio River and its tributaries. It is the mix
as well as the isolation of these cultures that gives American politics its flavor.
Important to students of electoral politics is that “the degree of political participation (i.e.,
voter turnout and suffrage regulations) is the most consistent indicator of political culture.”15
The moralistic culture perceives the discussion of public issues and voting as not only a right
but also an opportunity that is beneficial to the citizen and society alike. In contrast, the traditionalistic culture views politics as the special preserve of the social and economic elite and
a process of maintaining the existing order. Highly personal, it views political participation as
a privilege and uses social pressure as well as restrictive election laws to limit voting. The individualistic culture blurs the distinction between economic and political life. Here, business
and politics are both viewed as appropriate avenues by which an individual can advance his
or her interests, and conflicts of interest are fairly common. In this culture, business interests
can play a very strong role, and running for office is difficult without their support.
Low voter turnout in Texas may be due in part to the state’s political culture, which is a mix
of the traditionalistic and the individualistic. The traditionalistic aspect is especially characteristic of East Texas, settled primarily by immigrants from the Deep South in the years prior
★ CTQ
(b)
Identify forms of participation other than voting. Which forms of participation
give you the greatest influence in Texas politics?
Pete Marovich/Corbis
(a)
Marjorie Kamys Cotera/PhotoEdit
IMAGE 4.3 Signing petitions and attending rallies are important forms of political participation.
Although people are less likely to vote in the United States and especially in Texas, by comparison
with people in other countries, they are more likely to take part in other ways.
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to the Civil War. The individualistic aspect predominates throughout the rest of the state. As
a result, participation in politics is not as highly regarded as it is in other states, particularly
those with a moralistic culture, and politics in Texas is largely the domain of business interests. People may be less likely to vote in Texas because they do not value political participation
itself and because they tend to think that they play only a little role in politics.
Types of Elections in Texas
LO 4.2 Describe the types of Texas elections.
Winning an office is typically a two-stage process. First, the candidate must win the Democratic or Republican Party nomination in the primary election. Second, the candidate must
win the general election against the other party’s nominee. It is possible for a candidate to
get on the general election ballot without winning a primary election (as will be discussed
shortly), but this is rare. As in most other states, elections in Texas are dominated by the
Democratic and Republican parties.
Primary Elections
direct primary
A method of selecting party nominees in
which party members
participate directly
in the selection of a
candidate to represent
them in the general
election.
Three successive devices for selecting political party nominees have been used in the history
of this country, each perceived as a cure for the ills of a previously corrupt, inefficient, or
inadequate system. The first was the caucus, consisting of the elected political party members
serving in the legislature. The “insider” politics of the caucus room motivated the reformers
of the Jacksonian era to throw out “King Caucus” and to institute the party convention system by 1828. In this system, ordinary party members select delegates to a party convention,
and these delegates then nominate the party’s candidates for office and write a party platform. The convention system was hailed as a surefire method of ending party nominations
by the legislative bosses. By 1890, the backroom politics of the convention halls again moved
reformers to action, and the result was the direct primary, adopted by most states between
1890 and 1920. Texas’s first direct primary was held in 1906, under the Terrell Election Law
passed in 1903. The direct primary enables party members to participate directly in the
selection of a candidate to represent them in the general election.
Traditionally regarded as private activities, primaries were at one time largely beyond the
concern of legislatures and courts. Costs of party activities, including primaries, were covered by donations and by assessing each candidate who sought a party’s nomination. Judges
attempted to avoid suits between warring factions of the parties as much as they did those
involving church squabbles over the division of church property. This was the basis on which
the U.S. Supreme Court in 1935 upheld the Texas Democratic Party convention’s decision
barring African Americans from participating in the party primary.16 Because political party
activities were increasingly circumscribed by law, the Court reversed itself in 1944 and recognized the primary as an integral part of the election process.17
The Court noted that in a one-party state, which Texas was at the time, the party primary
may be the only election in which any meaningful choice is possible. Because the Democratic
Party seldom had any real opposition in the general election, winning the nomination was,
for all practical purposes, winning the office. The party balance in Texas has changed quite
a lot in recent years, however. The Republicans have overtaken the Democrats and have not
lost a statewide election since 1994.
Who Must Hold a Primary?
Any party receiving 20 percent of the gubernatorial vote in the prior election must hold
a primary, and all other parties must use the convention system.18 New parties must meet
Types of Elections in Texas
additional requirements if their nominees are to be on the general election ballot. In addition
to holding a convention, these parties must file with the secretary of state a list of supporters
equal to 1 percent of the total vote for governor in the last general election. The list may consist of the names of those who participated in the party’s convention, a nominating petition,
or a combination of the two. Persons named as supporters must be registered voters who have
not participated in the activities (primaries or conventions) of any other party. Each page
(although not each name) on the nominating petition must be notarized. Such a requirement
is, as intended, difficult to meet and therefore inhibits the creation of new political parties.19
Financing Primaries
Party primaries are funded partly by modest candidate filing fees, but most of the primaries’ costs come from the state treasury. The parties’ state and county executive committees
initially make the expenditures, but the secretary of state reimburses each committee for the
difference between the filing fees collected and the actual cost of the primary. To get on the
party primary ballot, a candidate needs only to file an application with the state or county
party chair and pay the prescribed fee. The categories of fees, applicable also for special elections, are summarized in Table 4.3.
So that no person is forced to bear an unreasonable expense when running for political
office, the legislature provided that a petition may be submitted as an alternative to the filing
fee. Such petition must bear the names of at least 5,000 voters for candidates seeking nomination to statewide office. For district and lesser offices, the petition must bear the signatures of
voters equal to 2 percent of the vote for the party’s candidate for governor in the last election,
up to a maximum of 500 required signatures.
Administering Primaries In the county primaries, the chair and county executive
committee of each party receive applications and filing fees and hold drawings to determine
the order of names on the ballot for both party and government offices. They then certify the
TABLE 4.3 Fees for Listing on the Party Primary Ballot in Texas,
Selected Offices
Office
Fee
U.S. Senator
$5,000
U.S. Representative
$3,125
Texas Statewide Officers
$3,750
State Senator
$1,250
State Representative
$750
State Board of Education Member
$300
County Commissioner
$750–$1,250
District Judge
$1,500–$2,500
Justice of the Peace, Constable
$375–$1,000
 How much do filing fees limit candidates’ access to the state ballot? Should election laws attempt to discourage frivolous candidates?
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ballot, choose an election judge for each voting precinct (usually the precinct chair), select the
voting devices (paper ballots or voting machines), and arrange for polling places and printing.
After the primary, the county chair and executive committee canvass the votes and certify the
results to their respective state executive committees.
In the state primary, the state party chair and the state executive committee of each political party receive applications of candidates for state offices, conduct drawings to determine
the order of names, certify the ballot to the county-level officials, and canvass the election
returns after the primary.
The Majority Rule In Texas, as in other southern states (except for Tennessee and
runoff primary
A second primary
election that pits the
two top vote-getters
from the first primary
against each other
when the winner of the
first primary did not
receive a majority.
Virginia) that were once predominantly Democratic, nominations are by a majority (50%
plus 1) of the popular vote. When several candidates seek their party’s nomination, one candidate can come in first without necessarily getting more than half. If no candidate receives a
majority of votes cast for a particular office in the first primary, a runoff primary is required
in which the two candidates receiving the greatest number of votes are pitted against each
other. Outside the South, where the balance between the two major parties has traditionally
been more equal, only a plurality of the votes (more votes than for anyone else) is required,
and consequently no runoff is necessary. The election rule used may influence the number of
candidates that run in primaries, as there is more reason to enter the race where the majority
rule is used. That is, one does not need to expect to win the first primary, but just finish in the
top two and get to the runoff (if the first place candidate does not win more than 50 percent
of the vote).
Primary elections in Texas are held on the first Tuesday in March of even-numbered years.
The runoff primary is scheduled for the fourth Tuesday in May, or more than two months
after the initial party primary election. Although there are earlier presidential primaries, no
other state schedules primaries to nominate candidates for state offices so far in advance of
the general election in November.
Turnout in Texas primaries is much lower than in general elections. Take 2014, for example: Despite multiple competitive statewide nomination contests, particularly in the Republican primary, only 2 million Texans voted, approximately 10 percent of the more than 19
million people who were 18 years of age or older. The people who do vote in primary elections
are hardly representative of the population—they tend to be better educated, more affluent,
and more ideologically extreme.
Open Primary Party primaries are defined as either open or closed. These terms relate to
open primary
A type of party primary in which a voter
can choose on election
day in which primary to
participate.
closed primary
A type of primary
in which a voter is
required to specify a
party preference when
registering to vote.
whether or not participation is limited to party members. Because the purpose of a primary is
to choose the party’s nominee, it may seem logical to exclude anyone who is not a party member. However, not every state recognizes the strength of that logic. Texas and 14 other states
have an open primary, in which voters decide at the polls (on election day) in which primary
they will participate. Of course, voters are forbidden to vote in more than one primary on
election day, and once they have voted in the first primary, they cannot switch parties and
participate in the runoff election or convention of any other party. Voters who did not vote
in the first primary are still free to vote in either party’s runoff primary, but because of the
restriction against switching parties after voting in the first primary, some consider the runoff
to be semi-open.
In contrast, the typical closed primary requires that a person specify a party preference
when registering to vote. The party’s name is then stamped on the registration card at the
time of issuance. Each voter may generally change party affiliation at any time up to 30 days
before participating in a primary or a convention. Voters are limited, however, to the activities
of the party they have formally declared as their preference. If the individual registers as an
Types of Elections in Texas
93
independent (no party preference), that person is excluded from the primaries and conventions of all parties. Eightteen states have closed primaries.
Nine states have a semi-closed (or semi-open) system, in which registered party members
must vote in their party primaries, but independents are allowed to vote in either primary.
Five other states have a mixed system, where one party has an open and the other a closed
(or semi-closed) primary. Another three states use a top-two primary, in which candidates
from different parties compete in a single primary and the top two vote-getters proceed to the
general election. Primary elections clearly differ quite a lot across states, but those differences
have little bearing on the general election. Whether voters participate in a party primary or
not, they are completely free to vote for any party candidate, the Democrat, the Republican,
or another candidate, in the general election in November.
Crossover Voting The opportunity always exists in Texas for members of one politi-
cal party to invade the other party’s primary. This is called crossover voting. It is designed
to increase the chances that the nominee from the other party will be someone whose philosophy is like that of the invader’s own party. For example, Democrats might cross over to
vote for the more moderate candidate in the Republican primary, or Republicans might cross
over into the Democratic primary to support the candidate who is least objectionable from
their viewpoint.
crossover voting
When members of one
political party vote
in the other party’s
primary to influence
the selection of the
nominee.
General Elections
The purpose of party primaries is to nominate the party’s candidates from the competing intraparty factions. General elections, in contrast, are held to allow the voters to choose the people
who will actually serve in national, state, and county offices from among the competing political party nominees and write-in candidates. General elections differ from primaries in at least
two other important ways. First, because general elections are the official public elections to
determine who will take office, they are administered completely by public (as opposed to
party) officials of state and county governments.20 Second, unlike Texas’s primaries, in which a
majority (50% plus 1) of the vote is required, the general election is decided by a plurality vote,
in which a winning candidate needs only to win the most votes, even if that number is less than
50 percent. Figure 4.3 shows the requirements for major party candidates to win office.
General elections in Texas are held every other year on the same day as national elections—
the first Tuesday after the first Monday in November of even-numbered years. In years divisible by four, we elect the president, vice president, all U.S. representatives, and one-third of
the U.S. senators. In Texas, we elect all 150 members of the state house and roughly half
(15 or 16) of the 31 senators. We also elect some board and court positions at the state level as
well as about half of the county positions.
However, most major state executive positions (governor, lieutenant governor, attorney
general, and so forth) are not filled until the middle of the president’s term. In the midterm
elections, the U.S. representatives and one-third of U.S. senators (but not the president) again
face the voters. All state representatives and half of the senators also are elected in these years,
as are some board members, judges, and county officers.
Holding simultaneous national and state elections has important political ramifications.
During the administration of Andrew Jackson, parties first began to tie the states and the
national government together politically. A strong presidential candidate and an effective
candidate for state office can benefit significantly by cooperating and campaigning under the
party label. This usually works best, of course, if the candidates are in substantial agreement
with respect to political philosophy and the issues.
In Texas, which is more politically conservative than the average American state, fundamental agreement is often lacking. This has been especially true for Democratic candidates.
plurality vote
An election rule in
which the candidate
with the most votes
wins even if that
candidate get less
than 50 percent.
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4 Voting and Elections
FIGURE 4.3 Primaries and General Elections in Texas
This figure shows the steps major party candidates must take to win office in Texas.
In March and May of even-numbered years, major parties hold primaries among their
members to determine who will be their nominees. General elections are public elections held in November so voters can determine who will actually win office among
various party nominees and independent candidates.
1
Getting on the Primary Ballot
Candidates pay filing fee or submit petition to their party’s chair
2
March Primary
Each party administers separate primaries to nominate candidates
Open to registered voters who choose to vote in that party’s primary
Candidate must win a majority to be nominated or face runoff
3
May Runoff Primary
Each party holds top-two runoff for candidates without majority in March primary
Open to registered voters who did not vote in the other party’s March primary
Candidate must win a majority to be nominated
4
November General Election
Administered by state and county officials
Held to determine which party nominee or independent candidate wins office
Open to all registered voters
Candidate must win a plurality to take office
★ CTQ
What is the difference between a plurality and a majority?
Why do minor parties and independent candidates have such
a difficult time getting on the ballot and winning the general
election?
Popular Democrats in the state often disassociate themselves from the more liberal presidential nominees of the party. As Democratic candidate for governor in 2010, Bill White played
down his connections to national Democrat Bill Clinton and rarely mentioned the sitting
Democratic President Barack Obama.
When the Texas Constitution was amended in 1972 to extend the terms (from two years
to four years) for the governor and other major administrative officials, the elections for these
offices were set for November of midterm election years. This change had two main effects.
First, although candidates are also running for Congress in midterm elections, separation of
presidential and state campaigns insulates public officials from the ebb and flow of presidential politics and allows them to further disassociate themselves from the national political
parties. Elections for statewide office now largely reflect Texas issues and interests. Second,
Types of Elections in Texas
95
the separation reduces voting turnout in statewide elections and makes the outcomes much
more predictable.
As was shown earlier, turnout in midterm elections is much lower than in presidential
election years, when many people are lured to the polls by the importance of the office and
the visibility of the campaign. The independent and the marginal voters are active, and election results for congressional and state-level offices are less predictable. In midterm election
years, however, less informed and less predictable voters are more likely to stay home, and the
contest is largely confined to political party regulars. Most incumbent state politicians prefer
to cast their lot with this more limited and predictable midterm electorate. Figure 4.4 shows
the low levels of participation in the 2014 and 2016 state elections.
FIGURE 4.4 Proportion of Texans Voting in Midterm and Presidential
Elections
This chart shows that only a small percentage of all Texans voted in the 2014 midterm primary and general elections that selected the governor and most major state
executive officers. About half of the population was registered to vote, and far less
actually voted. In contrast, voter interest was much higher in the 2016 presidential
primaries and general election. Voter turnout in the 2016 presidential election represented 32 percent of the total population.
100%
Total Population
100%
75.1%
Voting-Age Population
73.6%
63.2%
Voting-Eligible Population
61.9%
54.5%
Registered Voters
51.9%
32.3%
General Election Voters
17.5%
10.2%
Republican Primary Voters
5.0%
5.2%
Democratic Primary Voters
2.1%
0
10
20
30
40
50
2014
★ SRQ
60
2016
Should elected officials represent only those few who vote, or
should they represent all the people of the state? Should Texas
consider electing the governor and other major state officials in
presidential election years when voter turnout is greater?
Source: U.S. Census and Texas Secretary of State.
70
80
90
100
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Voting and Elections
Special Elections
As the name implies, special elections are designed to meet special or emergency needs, such
as ratification of constitutional amendments or filling vacant offices. Special elections are
held to fill vacancies only in legislative bodies that have general (rather than limited) lawmaking power. Typical legislative bodies with general power are the U.S. Senate and U.S.
House of Representatives, state legislatures, and city councils in home-rule cities. (All other
vacancies, including judgeships and county commissioners,
are filled by appointment.) Runoffs are held when necessary.
The elections provide for the filling of a vacancy only until
the end of the regular term or until the next general election,
Did You Know? The conservative legislature
whichever comes first.
adopted the majority rule for special elections after
liberal Ralph Yarborough won a U.S. Senate seat in
Because special elections are not partisan, the process of
1957 with a mere plurality of 38 percent in a special
getting on the ballot is relatively easy and does not involve a
election that featured 23 candidates. Those in control
primary.21 All that is required is filing the application form
of the legislature can and do change the rules of the
in a timely and appropriate manner and paying the desiggame to benefit those who share their political views.
nated filing fee. Unlike in general elections, the winner of a
special election must receive a majority of the votes.
The Conduct and Administration of Elections
LO 4.3 Understand how elections are administered in Texas.
Texas’s secretary of state is the state’s chief elections officer and interprets legislation and
issues guidelines. The secretary of state has the responsibility of disbursing funds to the state
and county executive committees to pay for the primary elections and is the keeper of election records, both party and governmental. The secretary of state also receives certificates
of nomination from parties that have conducted primaries and conventions and uses these
certificates to prepare the ballot for statewide offices. Along with the governor and a gubernatorial appointee, the secretary of state sits on the three-member board that canvasses election
returns for state and district offices.
County-Level Administration
Except for the preparation of the statewide portion of the ballot, county-level officials actually conduct general elections. Counties may choose from three options for the administration of general elections. The first option is to maintain the decentralized system that the
counties have used for decades. Under this system, the major portion of responsibility rests
with the county clerk. By the time the clerk receives the state portion of the ballot from the
secretary of state, he or she will have constructed the county- and precinct-level portion by
having received applications and certified the candidates’ names. The board of elections (consisting of the county judge, sheriff, clerk, and chair of the two major parties’ executive committees) arranges for polling places and for printing ballots. The county tax assessor–collector
processes all voter applications and updates the voting rolls. The county commissioners’ court
draws precinct voting lines, appoints election judges, selects voting devices, canvasses votes,
and authorizes payment of all election expenses from the county treasury.
The two other options available are designed to promote efficiency. One is for the county
commissioners’ court to transfer the voter registration function from the tax assessor–
collector’s office to that of the county clerk, thus removing the assessor–collector from the
electoral process. The other option represents more extensive reform. It calls for all election-related duties of both the assessor–collector and the county clerk to be transferred to
a county election administrator. This officer is appointed for a term of two years by the
The Conduct and Administration of Elections
97
County Elections Commission, which, in those counties that choose the election administrator option, replaces the board of elections. (Membership is the same, except that in the use of
the commission, the county clerk serves instead of the sheriff.)
Ballot Construction
Like so many other features of an election system, ballot construction reflects both practical and political considerations. Two basic types of general election ballots are available: the
party column ballot and the office block ballot. Texas uses a variant of the party column
ballot, on which offices are listed in descending order of importance and candidates historically were listed in columns under the party label. To vote a straight party ticket, the voter
need only mark the box for the party of his or her choice. To pick and choose between the
parties, a voter must mark a separate box by each of the many candidates on the ballot.
Many Texas counties have moved away from a strict party column ballot by arranging
party candidates in horizontal rows instead of vertical columns. Partly because of the adoption of electronic voting machines, most voters will see a ballot on which candidates are listed
underneath each office instead of in party columns. Figure 4.5 shows that voters can still cast
a vote for all of a party’s candidates by marking a single box without even reading the names
of candidates running for specific offices; Texas is one of only nine states that still provide this
single box straight ticket option. Voters can also readily find their party’s candidates because
Republican candidates are consistently listed in the first row under each office; Democrats
come next, followed by other candidates. Clearly, the party column ballot facilitates straight
ticket voting, which is selecting all of the candidates of one particular party.
In contrast, some states use the office block ballot, also known as the “Massachusetts
ballot” because it originated there. On this type of ballot, the parties’ candidates are listed
randomly rather than in a readily identifiable pattern. Office block ballots do not offer voters
the option of using a single mark to vote for all of the candidates of a single party. To vote
a straight party ticket, voters must search for their party’s candidates in each of the office
blocks. Clearly, this type of ballot facilitates split ticket voting, selecting candidates from
one party for some offices and candidates from another party for other offices. Minor parties
and independent voters usually advocate the use of this ballot type because it makes straight
ticket voting for the major parties more difficult and encourages voters to shop around among
parties and candidates.
The Politics of Ballot Construction Understandably, supporters of the major
Texas political parties strongly support the use of the party column ballot. It enables lesserknown candidates to ride on the coattails of the party label or a popular candidate running
for a major office. There may also be an extra payoff in the use of this type of ballot when
a party is listed first. For each office, the parties are slated from top to bottom on the ballot
(see Figure 2.5) according to the proportion of votes that each party’s candidate for governor received in the most recent gubernatorial election. Thus, candidates of the majority
party (Republicans) benefit by occupying the coveted first line (or column) on the ballot.
Democrats come second; next come third-party candidates and candidates of parties that
were not on the ballot in the last election; and last come the independents.
Getting on the Ballot For a name to be placed on the general election ballot, the candidate must be either a party nominee or an independent. For any party that received at least
5 percent of the vote for any statewide office in the previous general election, or 2 percent in
the prior gubernatorial election, the full slate of candidates is placed on the ballot automatically.
Thus, the Democratic and Republican parties have no problem getting their candidates on the
ballot, and certification by the appropriate officials of primary or convention winners is routine.
party column ballot
A type of ballot used
in a general election in
which all of the candidates from each party
are listed in parallel
columns under the
party label.
straight ticket voting
Selecting all of the
candidates of one
particular party.
office block ballot
A type of ballot used
in a general election in
which the names of the
parties’ candidates are
listed randomly under
each office.
split ticket voting
A voter selecting candidates from one party
for some offices and
candidates from the
other party for other
offices.
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4 Voting and Elections
FIGURE 4.5 A Typical Texas Ballot from Tarrant County
Recall from the text that Republican candidates are listed first in 2016 because their
candidate received the most votes in the last election for governor. Notice that
voters are able to vote for all of the candidates of a single party—that is, to vote a
straight ticket—by making a single mark on the ballot.
Multilingual
ballots in many
counties.
Candidates are
listed in the order
of their party’s
performance in
the last election.
Republican
candidates are
consistently
listed first and
Democrats
second.
Voters may
choose all
of the candidates
of one party
with a single
mark.
★ CTQ
Why would party leaders prefer a ballot arrangement that facilitates
straight ticket voting? What are the arguments for and against bilingual ballots such as the one shown here?
The Conduct and Administration of Elections
99
Minor parties have a more difficult time. For instance, in 2010 the Green Party broke the
5 percent barrier and, along with the Libertarians, earned a place on the 2012 ballot. Both
parties won more than 5 percent of the vote in subsequent elections to earn a place on the ballot in the 2014
and 2016 elections as well. All other minor parties were
Did You Know? Getting off a ballot can be
required to petition to gain ballot access.
as difficult as getting on. Take the case of Tom DeLay,
Except for independent candidates running for presia former member of the U.S. House of Representadent, independents and third party candidates may get
tives. After he resigned from Congress in June 2006,
a place on the ballot by submitting a petition containthe Republican Party tried to have him replaced on the
general election ballot. U.S. District Judge Sam Sparks
ing signatures of a number of registered voters equal to
ruled that he must remain on the ballot, and the Fifth
a particular share of the total vote in the last election
Circuit Court of Appeals upheld the decision.
for governor. For statewide office, signatures equaling
1 percent of the total gubernatorial vote are needed; for
multicounty district offices, 3 percent; and for all other
district and local offices, 5 percent. Although the number of signatures is relatively small for
some offices (a maximum of 500 at the local level), the process of gaining access to the ballot
by petition is difficult.22
Write-In Candidates Write-in candidates are not listed on the ballot—voters must
write them on the ballot. A write-in candidate must file a declaration of candidacy with
the secretary of state 70 days before election day. With the declaration the candidate must
include either the filing fee or a nominating petition with the required number of signatures.
The names of write-in candidates must be posted at the election site, possibly in the election booth. A candidate not properly registered cannot win, regardless of the votes he or she
receives. Even when registered, write-in candidates are seldom successful.
The Secret Ballot and the Integrity of Elections The essence of the right
to vote is generally viewed as the right to cast a ballot in secret, have the election conducted
fairly, and have the ballots counted correctly. The Australian ballot, adopted by Texas in
1892, allowed people to vote in secret. It includes names of the candidates of all political parties on a single ballot printed at the public’s expense and available only at the voting place.23
Given a reasonably private area in which to mark the ballot, the voter was offered a secret
ballot for the first time.
Although there are legal remedies, such as the issuance of injunctions and the threat of
criminal penalties, Texas has looked primarily to “political” remedies in its effort to protect
the integrity of the electoral process. Minority parties have reason to be concerned that irregularities in elections administered by members of the majority party may not be observed or,
if observed, may not be reported. Even in the absence of wrongdoing, the testimony of the
correctness of an election by individuals with opposing interests helps ensure public faith in
the process.
Traditional practice has been that in general and special elections, the county board of
elections routinely appoints as election judges the precinct chair of the political party whose
members constitute a majority on the elections board. Each election judge is required to
select at least one election clerk from a list submitted by the county chair of each political
party. Moreover, law now recognizes the status of poll watchers, and both primary candidates
and county chairs are authorized to appoint them.
Candidates can ask for a recount of the ballots. The candidate who requests a recount
must put up a deposit—$60 per precinct where paper ballots were used and $100 per precinct
using electronic voting—and is liable for the entire cost unless he or she wins or ties in the
recount. In a large county, a recount can be quite costly. Consider Dallas County, which has
Australian ballot
A ballot printed by
the government (as
opposed to the political parties) that allows
people to vote in
secret.
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4 Voting and Elections
almost 700 precincts. Despite this drawback, the current practice marks a real improvement
over the days when often ineffective judicial remedies were the only recourse.
Multilingualism Ballots in all Texas counties are in English. In more than 100 counties, the ballot is in both English and Spanish. In 2002, the U.S. Department of Justice
ordered Harris County, which includes Houston, to provide ballots (and voting material)
in Vietnamese as well. In 2012, Harris County added Mandarin Chinese to the ballot.
In some parts of the country, other languages are required, including Choctaw, Filipino,
Japanese, and Korean. In Los Angeles County alone, ballots are printed in seven different
languages. This all is due to the Voting Rights Act of 1965 and its subsequent amendment
in 1992. According to Section 203 of the act, a political subdivision (typically, a county)
must provide language assistance to voters if significant numbers of voting-age citizens are
members of a single language minority group and do not speak or understand English “well
enough to participate in the electoral process.” Specifically, the legal requirement is triggered
when more than 5 percent of voting-age citizens or 10,000 of these citizens meet the criteria.
The 2010 Census showed that more than 40,000 people living in Harris County identify
themselves as Chinese, and the U.S. Census Bureau determined that at least 10,000 of them
are old enough to vote but are not sufficiently proficient in English, thereby triggering the
requirement that ballots and other electoral and voting information be provided in Chinese.
Given the levels of immigration into the United States, the number of ballot languages is
likely to increase.
Early Voting All Texas voters can now vote before election day.24 Some voters can
early voting
The practice of voting
before election day at
traditional voting locations, such as schools,
and other locations,
such as grocery and
convenience stores.
vote by mail—specifically, those who plan to be away from the county on election day,
those who are sick or disabled, anyone who is 65 years or older, and people who are in jail
but are otherwise eligible to vote. The rest can only vote early in person. Generally, early
voting begins the 17th day before election day and ends the fourth day before election day.
In addition to traditional election day voting sites, such as schools and fire stations, there
are several other more familiar places to vote early, including grocery and convenience
stores. This innovation has clearly made voting easier in Texas, and people are using it. In
the 2016 election, for example, 74 percent of voters cast their ballot early. Although people
are voting earlier, they are not voting in greater numbers, as we noted earlier in the chapter.
The growing tendency toward early voting may still have important implications for when
and how politicians campaign.
Counting and Recounting Ballots
We take for granted that when we vote, our votes count. As we learned in Florida in the
2000 presidential election, this is not true. The first machine count of ballots in Florida
showed George W. Bush with a 1,725-vote lead. In a mandatory machine recount of the same
ballots, the same machines cut his lead to 327. We were also told that some 2 to 3 percent
of the ballots were not counted at all. How could this happen? What does this mean? The
answer is simple: Machines make mistakes. Some ballots are not counted. Some may even be
counted for the wrong candidate. This shocked most Americans.
Experts have known for a long time that vote counting contains a good amount of error.
By most accounts, the error rate averages 1 to 2 percent, although it can be higher depending on the ballot and the machines themselves. This is of importance to voters. It is typically of little consequence for election outcomes, however. Counting errors tend to cancel
out, meaning that no candidate gains a much greater number of votes. Thus, the errors are
important only when elections are very close, within a half percentage point, which is not very
common. When it does happen, the losing candidate can request a recount.
Election Campaigns in Texas: Strategies, Resources, and Results
Tom Carter/Alamy
IMAGE 4.4 Many voters use touch screens to cast their ballots.
★ CTQ
Does touch screen voting solve the problems with paper
ballots? How can we tell?
Texas has fairly specific laws about recounts. A candidate can request a recount if he or
she loses by less than 10 percent. This is a fairly generous rule compared to other states. The
candidate who requests the recount does have to pay for it, however, which means that most
candidates do not request a recount unless the margin is much closer—say, one percentage
point or less. As for the recount itself, the Texas Election Code states that “only one method
may be used in the recount” and “a manual recount shall be conducted in preference to an
electronic recount.” The procedures are fairly detailed.
Electronic Voting
Partly in response to the events in Florida—and the seeming potential for similar problems
in Texas—a number of counties introduced electronic voting in the 2002 midterm elections to allow voting by using touch screens. Instead of punching holes in ballots or filling in
bubbles on scannable paper ballots, most voters today cast ballots by touching screens. The
technology, similar to what is used in automated teller machines (ATMs) and electronic
ticket check-ins at many airports, promises an exact count of votes. It is now used for voting
throughout much of Texas and the United States. As with the introduction of any new technology, however, problems have occurred.
Election Campaigns in Texas: Strategies,
Resources, and Results
LO 4.4 Identify the factors that advantage (or disadvantage) candidates in
Texas elections.
The ultimate aim of party activity is to nominate candidates in the party primary or convention and get them elected in the general election. The campaign for the party’s nomination
electronic voting
Voting on a touch
screen.
101
102
4
Voting and Elections
is often more critical in one-party areas of the state—Democrats in South Texas and in some
large urban areas and Republicans in many rural and suburban areas. For local and district
offices in these areas, the key electoral decision is made in the primaries because the dominant party’s nominee is almost certain to win the general election. In statewide elections, the
crucial electoral decision is generally made in the Republican primary, where the party’s nominee is chosen. The Republican candidate then has a relatively clear path to winning office.
Candidates seeking their party’s nomination in a primary pursue a different sort of campaign strategy than they do when they later run in the general election. The primary electorate is usually much smaller and made up of more committed partisans. As a result, primary
candidates are likely to strike a more ideological or even strident approach that appeals to
activists. Once they have won their primary, candidates will often moderate their views to
win over swing voters and independents in the general election. For little-known candidates,
money and the endorsement of party elites are more crucial in the primary than in the general
election. Little-known candidates can frequently count on the party label to sweep them into
office in general elections.
The General Election Campaign
To a large extent, general election outcomes are predictable. Despite all the media attention
paid to the conventions, the debates, the advertising, and everything else involved in election
campaigns, certain things powerfully structure the vote in national and state elections.25 In
state elections, two factors dominate: party identification and incumbency.
First, where more people in a state identify with one political party than with the other, the
candidates of the preferred party have an advantage in general elections. For instance, when
most Texans identified with the Democratic Party, Democratic candidates dominated elected
offices throughout the state. As Texans have become more Republican in their identification,
Republican candidates have done very well; indeed, as was mentioned earlier, Republicans
now hold every statewide elected office. Identification with the political parties varies a lot
within Texas, however, and this has implications for state legislative elections. In some parts
of the state, particularly in the big cities, more people identify with the Democratic Party,
and Democratic candidates typically represent those areas in the state house and senate (see
Chapter 7). Thus, party identification in the state and in districts tells us a lot about which
candidates win general elections.
Second, incumbent candidates—those already in office who are up for reelection—are
more likely to win in general elections. This is particularly true in state legislative elections,
where the districts are fairly homogeneous and the campaigns are not very visible, but incumbency is also important in elections for statewide office. Incumbents have a number of advantages over challengers, the most important of which is that they have won in the past. To
become an incumbent, a candidate has had to beat an incumbent or else win in an open seat
election, which usually involves a contest among a number of strong candidates. By definition, therefore, incumbents are effective candidates. In addition, incumbents have the advantage of office. They are in a position to do things for their constituents and thus increase their
support among voters.
Although party identification and incumbency are important in Texas elections, they are
not the whole story. What they really tell us is the degree to which candidates are advantaged
or disadvantaged as they embark on their campaigns. Other factors ultimately matter on
election day.
Mobilizing Groups Groups play an important role in elections for any office. A fundamental part of campaigns is getting out the vote among groups that strongly support the
candidate. To a large extent, candidates focus on groups aligned with the political parties.26
Election Campaigns in Texas: Strategies, Resources, and Results
103
At the state level, business interests and teachers are particularly important. Republican candidates tend to focus their efforts on the former and Democratic candidates on the latter.
Candidates also mobilize other groups, including African Americans and Latinos. Traditionally, Democratic candidates have emphasized mobilizing these minority groups. Mobilizing
groups does not necessarily involve taking strong public stands on their behalf, especially
those that are less mainstream. The mobilization of such groups is typically conducted very
quietly, “under the radar”, often through targeted mailings, digital ads, and phone calls.
Choosing Issues Issues are important in any campaign. In campaigns for state offices,
taxes, education, immigration, and religious issues are salient, and abortion matters a lot too.
Just as they target social groups, candidates focus on issues that reflect their party affiliations, but they avoid unpopular positions like higher taxes or budget cuts for education or law
enforcement. Where candidates do differ is in their emphasis on particular issues and their
policy proposals. These choices depend heavily on carefully crafted opinion polls. Through
polls, candidates attempt to identify the issues that the public considers to be important and
then craft policy positions to address those issues. The process is ongoing, and candidates pay
close attention to changes in opinion and, perhaps most important, to the public’s response
to the candidates’ own positions. Public opinion polling is fundamental in modern election campaigns in America, and campaign messages are often presented in advance to focus
groups—test groups of selected citizens—to help campaign strategists tailor their messages
in a way that will appeal to particular audiences.
The Campaign Trail Deciding where and how to campaign are critical in planning
a campaign strategy. Candidates spend countless hours “on the stump,” traveling around
the state or district to speak before diverse groups. In a state as large as Texas, candidates for
statewide office must pick and choose areas so as to maximize their exposure. Unfortunately
for rural voters, this means that candidates spend most of their time in urban and suburban
areas, where they can get the attention of a large audience through the local media.
Nowadays, no candidate gets elected by stumping alone. The most direct route to the voters
is through the mass media. There are 20 media markets in Texas. These include approximately
200 local and cable television stations and almost 1500 radio stations. In addition, 79 daily
newspapers and many more weekly newspapers are dispersed throughout the state’s 254 counties.27 Candidates hire public relations firms and media consultants, and advertising plays a
big role. These days, a successful campaign often relies on negative campaigning, in which
candidates attack opponents’ issue positions or character. As one campaign consultant said,
“Campaigns are about definition. Either you define yourself and your opponent or [the other
candidates do]. . . . Victory goes to the aggressor.”28 Although often considered an unfortunate
development in American politics, it is important to keep in mind that negative campaigning
can serve to provide voters with information about the candidates and their issue positions.
Timing The timing of the campaign effort can be very important. Unlike presidential
elections, campaigns for state offices, including the governorship, begin fairly late in the election cycle. Indeed, it is common to hear little from gubernatorial candidates until after Labor
Day and from candidates for the legislature not until a month before the election.
Candidates often reserve a large proportion of their campaign advertising budget for a
last-minute media “blitz.” However, early voting may affect this strategy somewhat. Recall
that in 2016, 74 percent of the votes in Texas were cast early, during the weeks leading up
to the election, which means that the final campaign blitz came too late to have any effect
on more than half of all voters. Consequently, candidates in the future may be less likely to
concentrate their efforts so tightly on the final days of the campaign.
negative campaigning
A strategy used in
election campaigns
in which candidates
attack their opponents’ issue positions
or character.
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Voting and Elections
Money in Election Campaigns
Election campaigns are expensive, which means that candidates need to raise a lot of money
to be competitive. Indeed, the amount of money a candidate raises can be a deciding factor
in the campaign. Just how much a candidate needs depends on the level of the campaign
and the competitiveness of the race. High-level campaigns for statewide office are usually
multimillion-dollar affairs.
In recent years, the race for governor has become especially expensive, and campaign
spending has trended upward from one election to the next. In 2006, the four candidates spent
about $46 million in total, with then-Governor Rick Perry leading the way at $23 million.
In 2010, Perry spent $40 million to Bill White’s $25 million and won yet again. In 2014,
Governor Greg Abbott spent $50 million and easily beat former state senator Wendy Davis,
who spent $47 million, for a whopping $97 million in total.
Although lower-level races in Texas are not usually million-dollar affairs, they can be
expensive as well. This is certainly true if a contested office is an open seat, where the incumbent is not running for reelection, or if an incumbent is from a marginal district—one in
which the incumbent won office with less than 55 percent of the vote. It is not unusual for a
candidate in a competitive race for the state house to spend between $250,000 and $500,000
and for a candidate in a competitive race for the state senate to spend more than $1,000,000.
Where does this money come from? Candidates often try to solicit small individual contributions online and through direct mail campaigns. However, to raise the millions required
for a high-level state race, they must solicit “big money” from wealthy friends or business
and professional interests that have a stake in the outcome
of the campaign; see some examples in the Texas Insiders
feature. Another source of big money is loans—candidates
often borrow heavily from banks, wealthy friends, or even
Did You Know? A small sampling of the
themselves.29
PACs include AQUAPAC (set up by the Water Quality
Association), BEEF-PAC (Texas Cattle Feeders AssociaBanks, corporations, law firms, and professional association), SIX-PAC (National Beer Wholesalers Association),
tions, such as those representing doctors, real estate agents,
WAFFLEPAC (Waffle House, Inc.), and WHATAPAC
or teachers, organize and register their political action com(Whataburger Corporation of Texas).30
mittees (PACs) with the secretary of state’s office. PACs
serve as the vehicle through which interest groups collect
money and then contribute it to political candidates.
political action committees (PACs)
Organizations that
raise and then contribute money to political
candidates.
Where Does the Money Go? In today’s election campaigns, there are many ways
to spend money. Digital advertising, direct mail, newspaper ads, billboards, radio spots, yard
signs, and phone banks are all campaign staples. Candidates for statewide and urban races
must rely on media advertising, particularly television, to get the maximum exposure they
need in the three- or four-month campaign period. Campaigns are professionalized, with
candidates likely to hire consulting firms to manage their campaigns. Consultants contract
with public opinion pollsters, arrange advertising, and organize direct mail and digital media
campaigns that can target certain areas of the state.
We can get some idea about spending in campaigns from what candidates pay for advertising and political consultants in Harris County, which includes Houston:31
• A 30-second TV “spot” costs about $1,500 for a daytime ad, $2,000 to $5,000 for an
ad during the evening news, and $5,000 to $20,000 during prime time (8:00 p.m. to
11:00 p.m.), depending on the show’s popularity rating; for some popular programs, such
as CSI, the cost was as much as $25,000.
• Prime time for most radio broadcasting is “drive time” (5:00 a.m. to 10 a.m. and 3:00 p.m.
to 8:00 p.m.), when most people are driving to or from work. Drive-time rates range from
$250 to $2,000 per 60-second spot.
Election Campaigns in Texas: Strategies, Resources, and Results
105
• Billboards can run from $600 to $15,000 a month, depending on the location (billboards
on busy highways are the most expensive).
• Newspaper ads cost around $250 per column inch ($300 to $500 on Sunday). In 2012,
•
•
a half-page ad in the Houston Chronicle run on the day before the election cost more than
$15,000. Advertising rates for election campaigns are actually higher than standard rates
because political advertisers do not qualify for the discounts that regular advertisers receive.
Hiring a professional polling organization to conduct a poll in Harris County costs
$15,000 to $30,000.
Hiring a political consulting firm to manage a campaign in Harris County runs up to
$50,000, plus a percentage of media buys. (Technically, the percentage is paid by the television and radio stations.) Most firms also get a bonus ranging from $5,000 to $25,000 if
the candidate wins.
Clearly, money is important in election campaigns. Although the candidate who spends
the most money does not always win, a certain amount of money is necessary for a candidate
to be competitive. Speaking with his tongue partly in his cheek, one prominent politician
noted, in regard to high-level statewide races in Texas, that even if “you don’t have to raise
$10 million, you have to raise $8 million.”32
Control over Money in Campaigns Prompted by the increasing use of television in campaigns and the increasing amount of money needed to buy it, the federal government and most state governments passed laws regulating the use of money in the early
1970s. The Federal Elections Campaign Act of 1972 established regulations that apply only
to federal elections: president, vice president, and members of Congress. It provided for public financing of presidential campaigns with tax dollars, limited the amount of money that
individuals and PACs could contribute to campaigns, and required disclosure of campaign
donations. In 1976, the Supreme Court declared that it was unconstitutional to set spending
limits for campaigns that were not publicly funded; this means there are no spending limits
for congressional races nor for presidential races if a candidate does not accept public funds.33
The same is true for Texas state elections.
Not surprisingly, expenditures in election campaigns continue to increase. The Federal
Election Commission reported that $211.8 million was spent in the 1976 election of the
president and members of Congress, with $122.8 million spent in the presidential race alone.
Of the $60.9 million spent in the elections of the 435 House members, more money was spent
on behalf of the candidates in Texas ($4.5 million) than on those of any other state except
California.34 Such expenditure levels (only $140,000 per seat) appear modest by today’s standards. By 2014, the average was nearly $1.6 million per U.S. House seat and substantially
larger for U.S. Senate elections—at least $15 million. The level of campaign spending is likely
to continue to rise.
Later amendments to the Federal Elections Campaign Act made it legal for national political parties to raise and spend unlimited amounts of soft money, funds spent by political
parties on behalf of political candidates. Party funds could be used to help candidates in a
variety of ways, especially through voter registration and get-out-the-vote drives. The U.S.
Supreme Court further opened up spending in 1985 by deciding that independent expenditures could not be limited.35 As a result, individuals and organizations could spend as much
as they wanted to promote a candidate as long as they were not working or communicating
directly with the candidate’s campaign organization. The 2002 Campaign Reform Act limited independent expenditures by corporations and labor unions, but this was overturned by
the Supreme Court in its 2010 decision in Citizens United v. Federal Election Commission.
This may have implications for state and local bans on corporate spending, including in
Texas. The 2002 Act also deprived the parties of their soft money resources, but activists
soft money
Money spent by political parties on behalf
of political candidates,
especially for the purposes of increasing
voter registration and
turnout.
independent
expenditures
Money individuals and
organizations spend
to promote a candidate without working
or communicating
directly with the candidate’s campaign
organization.
106
★
4 Voting and Elections
Texas Insiders
Profiles of Texas Campaign Megadonors
Contributions to Texas political campaigns in
2014 totaled $334 million. Table 4.4 lists the
10 largest campaign donors, indicating who
contributed, how much they contributed, and in
which kinds of public policy decisions they had
an interest.
Thinking about the Role of Elites in Texas
Politics
politics and skews public policy toward the interests of wealthier individuals and groups.
Others argue that the influence of large contributions is balanced by other influences, such
as small contributions, public opinion, and alert
media. They defend the donors’ right to give
money to candidates who share their viewpoints
as a form of expression essential to a free society.
★ PRQ
Because of the enormous amounts of money
spent by just a few campaign contributors, some
critics have worried that large contributions buy
outsized political influence for their donors.
Most observers agree that campaign contributions open doors, giving contributors access to
public officials to argue the case for their interests; some critics argue that candidates’ reliance
on large campaign contributions corrupts state
Texas campaign finance regulations
are designed to hold public officials
and campaign contributors accountable by shining the light of publicity
on them. Think of other ways to limit
potential corrupting influences that
do not interfere with freedom of
expression.
TABLE 4.4 Profiles of Texas Campaign Megadonors
Donor
Total Contributions
Donor’s Special Interest
Texans for Lawsuit Reform PAC
$5,459,979
Limiting lawsuits against businesses and
professionals
David Alameel
$4,406,155
Dental clinics; investments; self-funded candidacy
for U.S. Senate
Texas Association of Realtors PAC
$2,450,910
Real estate industry; supporting property rights;
low property taxes
Empower Texans
$2,190,932
Supporting low taxes; small government;
conservative politics
Harold Simmons (Contran
Corporation; Waste Control
Specialists; Vahi, Inc.)
$1,860,500
Protecting plants and other facilities against
regulation; limiting lawsuits
Eric Opiela
$1,455,150
Property rights; self-funded candidacy for
agriculture commissioner
Charles C. Butt (HEB Grocery)
$1,335,300
Supporting public education
Doug Pitcock (Williams Brothers
Construction)
$1,328,100
Supporting spending on road construction;
obtaining state highway contracts
Border Health PAC
$1,292,519
Supporting doctor-owned health facilities;
generous Medicaid fees for providers
Dan and Jan Patrick
$1,250,000
Conservative politics; self-funded candidacy for
lieutenant governor
Institute for State Money in Politics and Texas Ethics Commission.
Election Campaigns in Texas: Strategies, Resources, and Results
simply set up nonparty organizations to collect and disperse such funds. Understandably, it
has been difficult to effectively control money in election campaigns.
FEC regulations apply only to candidates for national office. For candidates running for
state offices, the most important provisions of Texas law regarding money in campaigns are
as follows:
• Candidates may not raise or spend money until an official campaign treasurer is appointed.
• Candidates and PACs may not accept cash contributions for more than an aggregate of
$100, but checks in unlimited amounts are permitted.
• Direct contributions from corporations and labor unions are prohibited, though this may
•
•
•
change in the wake of the 2010 Supreme Court decision in Citizens United and ongoing
efforts to deregulate campaign spending.
Candidates and treasurers of campaign committees are required to file sworn statements
listing all contributions and expenditures for a designated reporting period to the Texas
secretary of state’s office.
Both criminal and civil penalties are imposed on anyone who violates the law’s provisions.
Primary enforcement of campaign regulations is the responsibility of the Texas Ethics
Commission.
Although these provisions may sound imposing, the fact is that raising and spending
money on Texas campaigns still is pretty much wide open. For example, corporations and
labor unions may not give directly to a candidate, but they may give via their PACs. Note also
that there are no limits on the amount a candidate may spend. Probably the most important
effect of the campaign finance law in Texas comes from the requirement of disclosure. How
much money a candidate raises, who makes contributions, and how campaign funds are
spent are matters of public record. This information may be newsworthy to reporters or other
individuals motivated to inform the public.
Who Gets Elected
It is useful to think of elected offices in Texas as a pyramid. At the bottom of the pyramid
are most local offices; at the top is the governor. Moving from bottom to top, the importance
of the office increases and the number of officeholders decreases. It thus gets more and more
difficult for politicians to ascend the pyramid, and only the most effective politicians rise to
the top. This tells us a lot about candidates and elections in Texas and elsewhere.
In local elections, the pool of candidates is diverse in many ways, including educational
background, income, and profession. As we move up the pyramid, however, candidates
become much more homogeneous. For statewide office, the typical candidate is middle or
upper class, from an urban area, and has strong ties to business and professional interests in
the state. Most elected state officers in Texas, including the governor, lieutenant governor,
and attorney general, must be acceptable to the state’s major financial and corporate interests
and to its top law firms. These interests help statewide candidates raise the large amounts of
money that are critical to a successful race.
Successful candidates for statewide office in Texas have traditionally been white Protestant males. Prior to 1986, when Raul Gonzalez was elected to the state supreme court, no
Latino or African American had been elected to statewide office. The only female governor
until that time was Miriam A. “Ma” Ferguson, who in the 1920s served as a surrogate for
her husband, Jim. In 1982, Ann Richards was elected state treasurer, becoming the second
woman ever to be elected to statewide office in Texas.
Since then, women and minorities have made some gains in statewide offices. Ann Richards became the first woman elected governor in her own right in 1990. Kay Bailey Hutchison captured the state treasurer’s office and in 1993 won a special election to become the
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Voting and Elections
first woman from Texas elected to the U.S. Senate. Dan Morales was the first Latino to win
a state executive office when he captured the attorney general’s office in 1990. More history
was made when Morris Overstreet of Amarillo won a seat on the Texas Court of Criminal
Appeals in 1990 and became the first African American elected to a statewide office.
Women and ethnic/racial minorities are starting to make inroads in other elected offices
in Texas. Women held 20 percent of the seats in the 84th Legislature (2015–2016), and
women have held the post of mayor in the state’s six largest cities: Houston, Dallas, San
Antonio, Austin, Fort Worth, and El Paso. Latinos hold 23 percent of the seats in the state
legislature, and African Americans occupy 11 percent. Clearly, Texas politics has changed a
lot over time. These changes are beginning to reflect the changing composition of the Texas
electorate, though with a noticeable lag.
Applying What You Have Learned about
Voting and Elections in Texas
LO 4.5 Apply what you have learned about voting and elections in Texas.
You learned in this chapter that campaign donors are a huge force driving election campaigns
in Texas. However, ideology is becoming a growing force, especially among Texas tea party,
or movement conservative, activists, who are frequently at odds with big money interests in
the state. So we invited Luke Macias to explain what motivates him as a political consultant
for some of the state’s most ardent conservative candidates.
Luke Macias founded Macias Strategies in 2011 at the age of 21. In 2012 he served as
consultant for five movement conservative Texas House candidates, three of whom (Giovanni
Capriglione, Matt Krause, and Jonathan Stickland) were victorious. In 2014 his client base
expanded to include additional House and Senate candidates, including Senators Konni
Burton and Bob Hall, and Capitol Inside named Macias the 2014 primary election cycle’s
individual “Most Valuable Consultant.” In 2016 Macias retained his status as one of the
Texas GOP’s most sought after consultants.
After you have read Macias’s essay, we will ask you to evaluate the role of money and
ideology in Texas politics, to identify how the author reveals his political goals, and to draw
conclusions about how the author would view the role of compromise in the political system.
★
POLITICS IN PR ACTICE
Everything’s Bigger in Texas, with a Twist of Red
by Luke Macias
Founder of Macias Strategies
Several years ago Erica Grieder, a senior editor at Texas Monthly, wrote a book titled Big, Hot,
Cheap, and Right: What America Can Learn from the Strange Genius of Texas. The book is a
great read, but the title alone makes you proud to be a Texan. As an Air Force brat, I lived in
two countries and seven different states in the first 13 years of my life. But whenever someone asked me, “Where are you from?” I proudly answered, “Texas.” This pride and honor to
be Texan is the lens by which I evaluate Texas political campaigns, focusing on Republican
politics. In Texas we have higher stakes, more voters, and more passionate battles than you
will ever see.
Applying What You Have Learned about Voting and Elections in Texas
Why do we have higher stakes? One reason could be that our state has a larger GDP than
Mexico, Australia, and Spain. Texas will spend over $100 billion dollars this year in our
annual state budget, while Oklahoma will spend a little over $7 billion. The stakes are higher,
therefore the battles are more expensive and definitely more entertaining.
We also have a lot more voters per legislator than in other states, which requires significantly
more effort from our campaigns. New Hampshire has 400 State Representatives each representing around 3,300 voters. Texas Representatives represent an average of 180,000 constituents per district. Seven State Representatives in Texas would cover all of New Hampshire. In
March of 2016, Senate District 1 (in which I was professionally involved) had 133,000 voters
in the Republican Primary. Let me put that in perspective. The front runner in that race,
Bryan Hughes, received nearly double the number of votes that Bernie Sanders received to
win the nomination to the U.S. Senate in 2006 in Vermont. So one could say that it requires
more effort to get elected to the State Senate in Texas, than to be a U.S. Senator in Vermont
and then a top contender for the Presidency of the United States.
All that being said, what makes Texas unique, even compared to states like California and
New York who are somewhat comparable in population and budget size, is the fact that we
are a majority Republican state for now, and have been for some time. The rightward leaning policies have definitely led to more job opportunities for college graduates and stronger
protections for the most vulnerable in society (the unborn). But many conservatives believe
that their Republican elected officials’ rhetoric doesn’t match their record. They run on
conservative principles but then kill legislation enacting those principles through the legislative process. As a result, it has required a significant amount of pressure to get these
policies enacted. We have seen incredibly fierce primary battles over the last ten years, in
some cases leading to over $2 million dollars spent for a single state house seat. Since the
vast number of legislative seats are in either safely Republican or Democratic districts and
the majority party candidate’s certain to win the general election, most important political
ideas are decided in both the Democratic and Republican primaries as the parties choose
their nominees.
Regardless of how you govern, every Republican runs as the second coming of Ronald Reagan. This doesn’t give as many opportunities as I would like to actually discuss policy differences but it definitely reveals that, regardless of a politician’s personal views, he will at
minimum speak the words that his constituents desire to hear. The good news is that over
the last eight years we have seen more incumbents lose their primary, even when they outspend their opponents 5 to 1. The hope is that this results in a closer alignment of rhetoric
and record. The less money determines political outcomes the better the constituents will be
served and the more important ideas become.
The hope is that Texas voters recognize how fortunate we are to live in this strange genius
called Texas and that we continue the policies that give us the opportunities we enjoy today.
I’m proud to work in a state that has higher stakes, more voters, and more passionate battles
than you will ever see anywhere else.
1. What evidence does the author present that conservative passion can succeed against incumbent Republicans who are able to outspend their more conservative challengers? Why does
the author focus his political campaign services on the Republican party primary?
2. Why does the author specialize in supporting more conservative candidates? What policies does he hope these conservatives will enact?
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4 Voting and Elections
★ Chapter Summary
LO 4.1 Explain why voter turnout is low in Texas. Before
you can vote in Texas, you must first register. Once registered,
voting in Texas is easy, though the recent passage of voter identification legislation had the potential to make things harder for some
people, particularly ethnic/racial minorities.
National turnout has fluctuated between 50 and 55 percent in
presidential elections and hovered around 40 percent in midterm
elections, much lower rates than we find in most other advanced
democracies. Voter turnout in Texas is usually about 10 percent
below the national average.
Low voter turnout in Texas may be due in part to the state’s
socioeconomic characteristics. A comparatively large percentage
of Texans live below the poverty level, and many have not graduated from high school; these people are not very likely to vote. The
large numbers of ethnic minorities and lack of party competition
also account for low turnout in the state.
LO 4.2 Describe the types of Texas elections. In Texas, as
in most American states, winning elected office usually requires
candidates to win both a primary and general election. Party
primaries are used to select the parties’ nominees. In Texas, candidates must win the primary by a majority vote or face a runoff
primary between the two highest vote-getters.
The election that officially determines who will take office is
the general election, in which all party nominees and independent
candidates face off against each other. Whichever candidate gets
the most votes, the plurality, wins. Except for special elections, the
candidate does not need a majority to be victorious.
LO 4.3 Understand how elections are administered in
Texas. Getting on the ballot in Texas general elections is difficult.
The easiest way is to win the Democratic or Republican primary,
and that is not easy. Third-party and independent candidates also
find it difficult to get on the ballot.
Ballot design is an important factor in elections. Texas traditionally has used the party column ballot, in which the names of
all the candidates of each party are listed in parallel columns. The
main alternative is the office block ballot, in which the names of
candidates are listed underneath each office. Many Texas counties have now adopted electronic voting systems, which combine
features of the two designs.
Another innovation has been the adoption of an early voting
option, which allows voting before election day at a variety of locations. In 2016, the majority of all votes in Texas were cast early.
This has fairly obvious implications for the timing and effects of
election campaigns.
LO 4.4 Identify the factors that advantage (or disadvantage) candidates in Texas elections. In Texas, as in other
states, voters’ choices on election day are driven to a large extent
by party affiliation, and Republican candidates usually win statewide office. Democrats, though, have large pockets of supporters
in some areas, particularly the big cities—Austin, Dallas, Houston,
and San Antonio—as well as the Rio Grande Valley.
Aside from the partisan balance, incumbency is also important,
and candidates need to be able to campaign effectively by mobilizing groups and choosing attractive issue positions. Candidates
must raise an increasing amount of funding to be competitive.
LO 4.5 Apply what you have learned about voting and
elections in Texas. You looked at election politics in Texas
through the eyes of a practicing campaign consultant for tea
party candidates. You evaluated the role of money and ideology
in Texas politics and explored how some of the state’s more conservative candidates have been able to capitalize on some voters’
rising conservative passions to win Republican primary elections
against better-funded opponents. You considered how these candidates view the role of compromise within our political system.
Key Terms
Australian ballot, p. 99
closed primary, p. 92
crossover voting, p. 93
direct primary, p. 90
early voting, p. 100
electronic voting, p. 101
independent expenditures,
p. 105
negative campaigning,
p. 103
office block ballot, p. 97
open primary, p. 92
participation paradox, p. 79
party column ballot, p. 97
plurality vote, p. 93
political action committees
(PACs), p. 104
runoff primary, p. 92
soft money, p. 105
split ticket voting, p. 97
straight ticket voting, p. 97
voter turnout, p. 82
voting-age population
(VAP), p. 83
Review Questions
LO 4.1 Explain why voter turnout is low in Texas.
• What explains why some people are more likely to
vote than others?
• Why does the number of elections in Texas lead to
lower turnout?
• How does Republican dominance of statewide office
affect turnout in Texas?
Think Critically and Get Active!
LO 4.2 Describe the types of Texas elections.
• What is the majority vote rule, and why is it used in
Texas primaries?
• What is the plurality vote rule, where is it used, and
what difference does it make in elections?
LO 4.3 Understand how elections are administered
in Texas.
• Why is it hard for candidates to get on the ballot in
Texas?
• Ballot design seems a technical issue but is seriously
111
LO 4.4 Identify the factors that advantage (or disad-
vantage) candidates in Texas elections.
• Why are some candidates more likely than others to
win elections in Texas? Do candidates have much
control over the things that matter?
• Have the efforts of elected officials in the United
States and Texas to control money in election campaigns been effective?
• What explains the growing diversity of elected
officials in Texas? Is it likely to continue? Why or
why not?
contested by parties and candidates. Why?
Think Critically and Get Active!
Become politically active. Register to vote by following
the instructions on the Texas Secretary of State’s website:
www.sos.state.tx.us/elections/voter/reqvr.shtml. Act
out, get involved, and register to vote at the Rock the Vote
and Mi Familia Vota websites, www.rockthevote.com
and www.mifamiliavota.org, and follow them on Twitter @RockTheVote and @MiFamiliaVota.
Choose your candidates based on the issues. Project Vote Smart provides information about candidates at
www.votesmart.org. There you can search by zip code to
find the elections—federal, state, and local—in which you
can vote. The site shows the candidates’ positions and has a
feature to help you pick the right candidate based on your
positions and how important you think each is. Project
Vote Smart also lets you see which interest groups support
which candidates.
See where candidates get their money. Money
is important in election campaigns and may tell you
something about candidates too. You can follow contributions in Texas elections at the Texas Ethics Commission website: www.ethics.state.tx.us.
Keep up with elected officials. You can monitor the
“roll call” votes of Texas legislators at Texas Legislature
Online at www.capitol.state.tx.us. The Texas Tribune
provides good, politically neutral coverage of the legislative votes and gubernatorial proposals and vetoes; it can
be found online at www.texastribune.org and followed
on Twitter @TexasTribune.
★ PRQ
In deciding how you will cast your
vote, should you consider candidates’
actual positions on public policy, or
is it enough for you to cast your vote
based on advertising-based images
and personalities? How important
is your assessment of a candidate’s
character?
5
Political Parties
Here you see some of the excitement that party politics generates at the Texas Republican Party state convention. In
this chapter, you will learn what motivates parties, how they are organized, and the important role they play in the Texas
political system.
Rodger Mallison/Fort Worth Star-Telegram/MCT/Getty Images
Learning Objectives
LO 5.1 Identify the characteristics of American political parties.
LO 5.2 Understand the evolution of the party system in Texas.
LO 5.3 Evaluate the importance of party organization.
LO 5.4 Assess the functions of political parties in American and Texas politics.
LO 5.5 Apply what you have learned about Texas political parties.
Characteristics of American Political Parties
113
T
he Founders created our complicated system of federal government and provided for the
election of a president and Congress. However, the U.S. Constitution makes no mention
of political parties. The Founders actually held negative attitudes toward parties. George
Washington warned of the “baneful effects of the spirit of party” in his farewell address.
James Madison, in Federalist Paper 10, criticized parties or “factions” as divisive but admitted that they were inevitable. Madison and others thought that parties would encourage
conflict and undermine consensus on public policy. Yet despite their condemnation of
parties, these early American politicians engaged in partisan politics and initiated a competitive two-party system.
Parties, then, are apparently something we should live neither with nor without. They
have been with us from the start of this country and will be with us for the foreseeable future,
influencing our government and public policy. It is important, therefore, to gain an understanding of what they are all about.
What is a political party? This question conjures up various stereotypes: smoke-filled
rooms of the past where party leaders or bosses make important behind-the-scenes decisions;
activists or regulars who give time, money, and enthusiastic support to their candidates; or
voters who proudly identify themselves as Democrats or Republicans. Essentially, though, a
political party is a broad-based coalition of people whose primary purpose is to win elections.
Gaining control of government through popular elections is the most important goal for
political parties, and most of the activities parties pursue are directed toward this purpose.
Parties recruit and nominate their members for public office. They form coalitions of different
groups and interests to build majorities so that they can elect their candidates.
Political parties are vital to democracy in that they provide a link between the people
and the government. Parties provide an avenue for the ordinary citizen to participate in the
political system; they provide the means for organizing support for particular candidates. In
organizing this support, parties unify various groups and interests and mobilize them behind
the candidates who support their preferred positions.
Characteristics of American Political Parties
LO 5.1 Identify the characteristics of American political parties.
The American political party system has three distinct characteristics not always found in
parties elsewhere in the world: (1) two-party system, (2) pragmatism, and (3) decentralization.
Two-Party System
In Texas and the other U.S. states, political competition is usually between the two major
parties—the Democrats and the Republicans. Such a system is called a two-party system
because only two dominant parties compete for political office and minor or third parties
have little chance of winning.
The two-party system partly results from our electoral system, which relies on singlemember districts—election districts in which one candidate is elected to a legislative body.
If only one representative can be elected in a district, voters tend to cast their ballots for the
major party candidates that have the best chance of winning and not “waste” their vote on
a third party destined to lose. Employing a plurality voting rule in general elections, as we
noted in Chapter 4, only reinforces the dominance of a two-party system because there is no
electoral reason to run as a third-party candidate or support one unless the party actually has
a realistic chance to win. By contrast, under a majority voting rule, which is used in Texas
primary elections, there may be a benefit to finishing second because it can lead to a runoff
election between the top two candidates if the plurality winner in the first election does not
get a majority of the votes.1
two-party system
A political system characterized by two dominant parties competing
for political offices. In
such systems, minor or
third parties have little
chance of winning.
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5
Political Parties
In addition to the electoral system, laws put in place by the Democratic and Republican
parties make it hard for third parties to form. As mentioned in Chapter 4, third parties such
as the Libertarian Party or Green Party must surpass a statewide vote threshold in the prior
election to obtain automatic ballot status in Texas. Failure to gain this vote share (2 percent in
the gubernatorial election or 5 percent in any other statewide contest) means third parties can
get on the ballot only by launching petition drives that gather the signatures of registered voters who did not vote in either major party primary. Independent candidates must also meet
this standard. In the 2006 gubernatorial election, independent candidates Carole Keeton
Strayhorn and Kinky Friedman were required to collect 45,540 valid signatures from eligible
voters who had not voted in the March primaries to compete in the November election. The
Democratic and Republican candidates just had to win their primaries.
Despite the electoral system and election laws, there have been third parties in the United
States and in Texas. Most have come and gone, partly because of the difficulties of competing but also because of the major parties’ efforts to absorb third parties by adopting their
issues. One notable example is the Populist Party of the 1890s, which was absorbed by the
Democratic Party. Only rarely have new parties survived, and they have thrived only at
the expense of one of the two preexisting parties. The one American case occurred during the
1850s, when the Republican Party emerged after the collapse of the Whigs. Since that time
there have been numerous attempts to form and develop third parties, yet the Democratic
and Republican parties remain and the challenges they face are slight.
Pragmatism
Pragmatism
The philosophy that
ideas should be
judged on the basis of
their practical results
rather than the purity
of their principles.
valence issues
Issues on which virtually all of the public
agrees, such as peace
and prosperity.
position issues
Issues on which the
public is divided.
Pragmatism in politics means that ideas should be judged on the basis of their practical
results rather than the purity of their principles.2 In other words, a pragmatist is interested
in what works. American parties are sometimes willing to compromise principles to appeal
successfully to a majority of voters and gain public office. They willingly bargain with most
organized groups and take stands that appeal to a large number of interests to build a winning coalition in a two-party system. American parties thus are much less programmatic than
those in many Western European countries that have multi-party systems, where parties are
more likely to be committed to a particular ideology and their supporters are committed to
programmatic goals.
Pragmatism often means taking clear-cut positions only on those issues on which virtually
all of the public agrees, what political scientists often refer to as valence issues. Leading
examples are peace and prosperity, which feature prominently in American elections, especially the economy. This may have been made clearest by former President Bill Clinton’s
political strategist James Carville, who famously focused Bill Clinton’s successful 1992 campaign on the phrase “It’s the Economy, Stupid.” Economic growth is something on which the
public agrees, after all, and in 1992 people mostly thought that things under sitting President
George H. W. Bush were not going well. By contrast, taking clear stands on controversial
issues may alienate potential supporters in a general election, especially voters who are not
strong partisans. Political parties and their candidates, including those in Texas, thus often
prefer to deemphasize position issues, on which the public is divided, and instead focus on
valence issues. They may also stress leadership potential and statesmanship, as well as family life and personality. All of this said, position issues can be important and prominent in
primary elections, which in turn can affect—and complicate—the general election campaign
against the candidate of the other party.
Growing Polarization? Although the broad electoral coalitions that comprise American
parties make it difficult for them to achieve ideological consistency, it would be a mistake to
assume that parties in America do not differ from one another. Indeed, most observers think
The Development of the Texas Party System
115
that American parties have become more programmatic and more polarized in recent years.3
To succeed, they must satisfy their traditional supporters: voters, public opinion leaders, interest groups, and campaign contributors. The candidates are not blank slates but have their own
beliefs, prejudices, biases, and opinions. In most elections, broad ideological differences are
apparent. Voters who participated in the presidential election of 2016 could relatively easily
differentiate between the populist conservatism of Donald Trump and the more liberal philosophy of his opponent, Hillary Clinton. Similar philosophical differences also were evident
between the parties’ candidates for Texas state offices in the 2014 election.
Decentralization
At first glance, American party organizations may appear to be neatly ordered and hierarchical, with power flowing from the national to state to local parties. In reality, however,
American parties are not nearly so hierarchical. They reflect the American federal system,
with its decentralization of power to the state and local levels of government. Political party
organizations operate at the precinct, or neighborhood, level; the local government level (city,
county, or legislative district); the state level (especially in elections for governor); and the
national level (especially in elections for president).
State and local party organizations are semi-independent actors that exercise considerable discretion on most party matters. The practices that state and local parties follow, the
candidates they recruit, the campaign money they raise, the innovations they introduce, the
organized interests to which they respond, the campaign strategies they create, and most
important, the policy orientations of the candidates who run under their label are all influenced by local and state political cultures, leaders, traditions, and interests.4
Although the American party system is quite decentralized, power has shifted to the national
party organizations in recent years. Both the Democratic and Republican national parties have
become stronger and more involved in state and local party activities through various service
functions. By using new campaign technologies—computer-based mailing lists, direct mail
solicitations, and the Internet—the national parties have raised hundreds of millions of dollars. Accordingly, the national party organizations have assumed a greater role by providing
unprecedented levels of assistance to state parties and candidates. This assistance includes a
variety of services—candidate recruitment, research, public opinion polling, computer networking, production of digital, radio, and television commercials, direct mailing, consultation
on redistricting issues, and the transfer of millions of dollars’ worth of campaign funding. Not
surprisingly, as national parties provide more money and services to state and local parties,
they exercise more influence over state and local organizations, issues, and candidates.5
The Development of the Texas Party System
LO 5.2 Understand the evolution of the party system in Texas.
Although for most of its existence the United States has had a two-party system, many states
and localities—including Texas—have been dominated by just one party at various times
in history. Texas formerly was a one-party Democratic state but is no longer. To understand
political parties in Texas, it is necessary to examine the historical predominance of the
Democratic Party, the emergence of two-party competition in the state, and the reality of
Republican Party dominance at present.
The One-Party Tradition in Texas
Under the Republic of Texas, there was little party activity. Political divisions were primarily
oriented around support of, or opposition to, Sam Houston, a leading founder of the
decentralization
Exercise of power at
the state and local
levels of government
in addition to the
national level.
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5 Political Parties
Republic. After Texas became a state, however, the Democratic Party dominated Texas
politics until the 1980s. This legacy of domiDid You Know? In the 1890s, author and
journalist O. Henry described early Texas political
nance was firmly established by the Civil War
history when he said Texas “only had two or three
and the era of Reconstruction, when Yankee
laws, such as against murder before witnesses,
troops, under the direction of a Republican
and being caught stealing horses, and voting the
Congress, occupied the South. From the time
Republican ticket.”
that the Republican and former Union soldier Edmund J. Davis’s single term as governor ended in 1873 until the surprising victory
of the Republican gubernatorial candidate Bill Clements in 1978, the Democrats exercised
almost complete control over Texas politics.
The Democratic Party was at times challenged by the emergence of more liberal third
parties. The most serious of these challenges came in the late nineteenth century with the
Populist revolt. The Populist Party grew out of the dissatisfaction of small farmers who
demanded government regulation of rates charged by banks and railroads. These farmers—
joined by sharecroppers, laborers, and African Americans—mounted a serious election bid
in 1896, taking 44.3 percent of the vote for governor. Eventually, however, the Democratic
Party defused the threat of the Populists by co-opting many of the issues of the new party.
The Democrats also effectively disenfranchised African Americans and poor whites in 1902
with the passage of a poll tax.
Two events in the early twentieth century solidified the position of the Democrats in
Texas politics. The first was the institution of party primary “reforms” in 1906. For the first
time, voters could choose the party’s nominees by a direct vote in the party primary. Hence,
the Democratic primary became the substitute for the two-party contest, the general election. In the absence of Republican competition, the Democratic primary was the only game
in town, and it provided a competitive arena for distinct political interests within the state.
The second event to help the Democrats was the Depression. Although the Republican
presidential candidate, Herbert Hoover, carried Texas in 1928, Republicans were closely
associated with the Great Depression of the 1930s. The cumulative effect of this association,
the Civil War, and Reconstruction ensured Democratic dominance in state government
until the late 1980s.
Ideological Factions in America and Texas
Although members of a political party may be similar in their views, factions or divisions
within the party inevitably develop. These conflicts may involve a variety of personalities and
issues, but the most important basis for division is ideology.
Conservatives The meaning of conservatism changes over time and it means different
things to different people; some people are economic conservatives while others are social
conservatives. As we saw in Chapter 1, economic conservatives believe that individuals should
be left alone to compete in a free market unfettered by government control; they prefer that
government regulation of the economy be kept to a minimum. They extol the virtues of individualism, independence, and personal initiative. However, conservatives often support government involvement and funding to promote business, including construction of highways,
tax incentives for investment, and other government assistance to business. The theory is
that this assistance will encourage economic development and hence prosperity for the whole
society; critics call this the “trickle-down theory.” On the other hand, conservatives are likely
to oppose government programs that involve a large-scale redistribution of income or wealth,
such as welfare, universal health care coverage, or unemployment compensation.
117
Some social conservatives view change suspiciously; they
IMAGE 5.1 Ted Cruz is a conservative Texas
tend to favor the status quo—things as they are now and as
Republican who has been supported by both
they have been. They emphasize traditional values associated
Christian conservatives and tea party activists.
with the family and close communities, and they often favor
government action to preserve what they see as the proper moral
values of society. Because conservatives hold a more skeptical
view of human nature than liberals do, they are more likely to
be tougher on perceived threats to personal safety and public
order as well as to traditional and religious values. For example,
conservatives are more likely to favor stiffer penalties for criminals, including capital punishment. Conservatives may combine
support for the free market with support for traditional values,
or they may adopt only one of these views.
Like conservatism, libertarianism is based on a limited government philosophy that rejects government involvement in
the economy and is hence conservative on economic issues.
However, it also rejects government intrusion into personal
choices in such matters as marijuana use and is hence liberal on
★ CTQ
How do conservatives and liberals
social issues. In recent years, the Libertarian Party has become
differ on public policy?
an active, if not always influential, force in Texas politics. The
Libertarian Party has a hands-off philosophy of government
that appeals to many Texas conservatives. The party’s general philosophy is one of individual liberty and personal responsibility. Applying their doctrine to the issues, libertarians
would oppose Social Security, campaign finance reform, gun control, and many foreign
policies. They consider programs like Social Security to be “state-provided welfare” and
believe that regulating campaigns promotes too much government involvement. They also
oppose U.S. intervention in world affairs. The Libertarian Party faces the same hurdles as
other third parties: poor financing, a lack of media coverage, and in some states, getting
access to the ballot.
Liberals Liberals believe that it is often necessary for government to regulate the econ-
omy and to promote greater social equality. They point to great concentrations of wealth
and power that have threatened to control government, destroy economic competition, and
weaken individual freedom. Government power, they believe, should be used to protect the
disadvantaged and to promote equality. Consequently, liberals are generally supportive of
the social welfare programs that conservatives oppose. Liberals champion the right to form
unions, unemployment benefits, universal health care, subsidized housing, and improved
educational opportunities. They are also more likely to favor progressive taxes, such as the
federal income tax, which increase as incomes increase.
Liberals want government to protect the civil rights and liberties of individuals and are
critical of interference with any exercise of the constitutional rights of free speech, press,
religion, assembly, association, and privacy. They are often suspicious of conservatives’
attempts to “legislate morality” because of the potential for interference with individual
rights.
Conservatives, Liberals, and Texas Democrats
For many years, factions within the Texas Democratic Party resembled a two-party system,
and the election to select the Democratic Party’s nominees—the primary—was the most
important election in Texas. Until the 1990s, conservative Democrats were much more successful than their liberal counterparts in these primaries, in part because Republican voters,
Bill O’Leary/The Washington Post/Getty Images
The Development of the Texas Party System
118
5
Political Parties
facing no significant primary race of their own, regularly crossed over and supported conservative Democratic candidates. Voters in the general elections, facing a choice between
a conservative Democrat and a conservative Republican, usually went with the traditional
party—the Democrats. These Republican crossover votes enabled conservative Democrats,
with few exceptions, to control the party and state government until the late 1970s.
Conservative Democrats in Texas provided a very good example of the semi-independent
relationship of national, state, and local party organizations. Texas conservatives traditionally
voted Democratic in state and local races but often refused to support the national Democratic
candidates for president. Indeed, the development of the conservative Democratic faction in
Texas was an outgrowth of conservative dissatisfaction with many New Deal proposals of
Franklin D. Roosevelt in the 1930s and Fair Deal proposals of Harry Truman in the 1940s.
Conservative Democrats in Texas continued their cool relationship with the national party
as many of them supported Republican presidential candidates, such as Dwight Eisenhower in
1952, even as they supported conservative Democrats running for state and local offices. Many
of these conservative Texans would later begin to support Republicans for state and local offices
as well. No Democratic presidential candidate has carried Texas since Jimmy Carter in 1976,
no Democrat has won the governorship since Ann Richards did in 1990, and no Democrat has
won a statewide election since 1994.
Several factors accounted for the historical success of conservative Democrats, but the
most important were the power and resources
Did You Know? In 1952, conservative
of the conservative constituency. ConservaDemocratic Governor Allan Shivers was nominated
tives have traditionally made up the state’s
by both the Democratic and Republican parties for
power elite, representing such interests as the
the same office.
oil and gas industry, other large corporations,
large farms and ranches (agribusiness), owners and publishers of many of the state’s major
daily newspapers, and veterans. In other words, the most affluent people in the state are
able and willing to contribute their considerable resources to the campaigns of like-minded
politicians. These segments of the population are also the most likely to turn out and vote
in elections. This was a significant advantage to conservative Democrats competing in the
party primary.
Liberals in the Texas Democratic Party have consisted of groups that have supported the
national party ticket and its presidents. These groups include the following:
•
•
•
•
•
•
•
•
Organized labor, in particular the American Federation of Labor–Congress of Industrial
Organizations (AFL-CIO)
African American groups, such as the National Association for the Advancement of
Colored People (NAACP)
Latino groups, such as the American G.I. Forum, League of Latin American Citizens
(LULAC), Mexican American Democrats (MAD), and Mexican American Legal Defense
and Educational Fund (MALDEF)
Various professionals, teachers, and intellectuals
Small farmers and ranchers, sometimes belonging to the Texas Farmers Union
Environmental groups, such as the Sierra Club
Abortion rights groups, such as NARAL Pro-Choice Texas
Trial lawyers—that is, lawyers who represent plaintiffs in civil suits and defendants in
criminal cases
The success of liberal Democratic politicians in Texas was infrequent and rarely persisted for
more than a few years. In recent years, liberal Texas Democrats have had more success in capturing their party’s nomination, largely because conservatives are voting in the Republican primary.
The Development of the Texas Party System
Lately, liberal or moderate Democrats have been routinely nominated for almost all of the statewide races. There is irony for the liberal Democrats in Texas: Although they have gained control
of the Democratic Party as conservatives have defected from their ranks, these defections have
left the Democrats in the minority and made the Republicans dominant in Texas.
The Rise of the Republican Party
Before the presidential election of November 1988, only three post-Reconstruction Republicans had won non-presidential statewide races in Texas: Senator John Tower (1961–1985),
Governor Bill Clements (1979–1983 and 1987–1991), and Senator Phil Gramm (1985–2003).
Why had the Republican Party failed to compete in Texas in the past? The most important
reason is Texas’s experience in the Civil War and during Reconstruction. The Republican
administration of Governor E. J. Davis under the Texas Constitution of 1869 was considered the most corrupt and abusive period of Texas history. Only in the past few decades has
the Republican Party been able to shake its image as the party of Reconstruction.
The Republicans Become Competitive The revival of the Republican Party
was foreshadowed in the 1950s by the development of the so-called presidential Republicans
(people who vote Republican for national office but Democratic for state and local office).
Screen Shot
IMAGE 5.2 This 1961 campaign flyer presents U.S. Senate candidate John
Tower’s positions on some of the most high profile issues of the day, many of
which (though not all) remain salient 55 years later.
★ CTQ
What role did John Tower play in the Republican Party’s rise to
dominant party status in Texas?
119
120
5 Political Parties
As discussed earlier, conservative Democrats objected to the obvious policy differences of the
state and national Democratic parties and often voted for Republican presidential candidates.
The first major step in the rejuvenation of the Republican Party in Texas came in 1961,
when John Tower, a Republican, was elected to the U.S. Senate. Tower won a special nonpartisan election held when Lyndon Johnson gave up his Senate seat to assume the vice
presidency. In his campaign, Tower highlighted his conservative positions on many of the
highest profile issues of the early 1960s, including states’ rights, right to work, and overcoming socialism (see Image 5.2). Tower was reelected three times (1966, 1972, 1978), leaving
office in 1985 after opting not to run for a fifth term. His seat was retained by the Republicans with the election to the Senate of former Representative Phil Gramm over his liberal
Democratic opponent Lloyd Doggett in 1984. In November 2002, John Cornyn, a Republican and the state’s former attorney general, was elected to replace Gramm.
In November 1978, the Republicans achieved their most stunning breakthrough when
Bill Clements defeated John Hill in the race for governor. After losing the governor’s seat
to a moderately conservative Democrat, Mark White, in 1982, Republicans regained their
momentum in 1986, when Clements turned the tables on White and recaptured the governorship. Developments in the 1990s and early 2000s transformed Texas into “Republican
country.” With the election in 1992 of U.S. Senator Kay Bailey Hutchison, Republicans held
both U.S. Senate seats for the first time since Reconstruction. In 1994, Republican George
W. Bush defeated incumbent Democratic Governor Ann Richards.
By far the most impressive gains for the GOP came in the November 1998 elections,
when incumbent Governor George W. Bush led a sweep of Republicans to victory in every
statewide election. For the first time in generations, no Democrats occupied any statewide
executive or judicial office. Republicans have continued to maintain their monopoly in
statewide elections. In 2004, after a successful second effort at congressional redistricting,
the GOP captured a majority in Texas’s congressional delegation.
The Republican Party is now dominant in lower-level offices in much of the state, where
Democrats were once most firmly entrenched. In 1974, the GOP held only 53 offices at the
county level; they now hold a majority in county courthouses representing two-thirds of the
state’s population. The GOP gained a majority of seats in the Texas Senate in 1996 and a majority
in the Texas House of Representatives in 2002. Table 5.1 shows the dramatic increases by Republicans in the Texas Legislature and the Texas delegation to the U.S. House of Representatives.
TABLE 5.1 Changes in the Number of Republican and Democratic
Officeholders in Texas
1973
Body
2017
Democrats
Republicans
Democrats
Republicans
132
17
55
95
Texas Senate
28
3
11
20
U.S. House of Representatives
20
4
11
25
1
1
0
2
Texas House of Representatives
U.S. Senate
 What explains the Republican dominance of the Texas political scene today?
To what extent will demographic changes affect the future success of
the party?
The Development of the Texas Party System
121
The Era of Republican Dominance The Republican Party continues its
dominance in Texas state politics. Most observers now agree that Texas has experienced a
party realignment, the long-term transition from a system in which one party is consistently dominant to one in which another party is consistently dominant After more than
a century of Democratic Party domination after the Civil War, the pendulum has swung
to the Republican Party. Realignment involves more than just casting a vote for a Republican Party candidate; it refers to a shift in attachment to political parties, which is called
partisan identification. Evidence that Texas is becoming a Republican-dominated state
comes from public opinion polls that show that many more Texans are identifying with
the Republican Party than in the past. As Table 5.2 indicates, in 1952, an overwhelming
percentage of Texans who identified with a political party were Democrats; indeed, only 6
percent considered themselves Republicans, compared with 66 percent for the Democrats.
(The remaining 28 percent considered themselves “independents.”)
In 2002, exactly 50 years later, polls showed that identification among Texans with the
Republican Party exceeded that for the Democratic Party. From Table 5.2, we also can see
that the total percentage of partisans decreased during the period, which suggests a period
of dealignment, in which increasing numbers of voters choose not to identify with either of
the two parties and consider themselves to be independents. This is not surprising in transition from the one-party Democratic control to Republican dominance, as many Republicanvoting Democrats do not completely switch parties, but consider themselves independents,
at least for a while.
The partisan balance evened out between 2002 and 2016, the year Hillary Clinton battled Donald Trump in the presidential election, though the split at the time is deceiving,
as a significantly larger portion of independents said they “leaned” toward the Republican
Party. (These leaners tend to vote very much like partisans on election day.) By 2016, the
TABLE 5.2 Percentage of Voters Indicating a Major Party Identification
This table shows that Texas voters were once heavily identified with the Democratic
Party, but now are split between the two parties. Notice, however, that the share of
voters who identify with either party has declined slightly.
Year
Democrats
Republicans
Total Party Identifiers
1952
66
6
72
1972
57
14
71
1990
34
30
64
2002
25
37
62
2008
35
36
71
2014
31
38
69
2016
33
35
68
Polls conducted by Belden and Associates (1952 and 1972), Harte-Hanks Communications (1990), American National
Election Studies (2002), and the University of Texas/Texas Tribune polls (2008, 2014, and 2016).
 Explain why Republican candidates are so heavily favored in elections when just
over one-third of Texas voters consider themselves Republicans.
party realignment
The long-term transition from a system in
which one party is consistently dominant to
one in which another
party is consistently
dominant.
partisan identification
A person’s attachment
to one political party
or the other.
dealignment
When increasing
numbers of voters
choose not to identify
with either of the two
parties and consider
themselves to be
independents.
122
5 Political Parties
Republicans maintained a small lead among party identifiers, but held a decided 48–41 advantage when leangaining dominance in Texas. This statue was promiing independents were included. The partisan balance
nently displayed at the party’s state convention to
has changed dramatically in Texas, though it didn’t hapsymbolize the Republicanization of the state.
pen overnight.
To a large extent the rise of the Republican Party in
Texas reflected the “sorting” of voters’ identification to
match their conservative ideological orientations.6 This
takes time, as partisan identification in the electorate changes slowly. Political scientists have shown that
people’s dispositions toward the parties begin to develop
at an early age, and that our parents are particularly
influential.7 As these dispositions are reinforced, say, by
interactions with friends and neighbors, identifications
harden and become resistant to change. This does not
mean that they do not change, of course. Part of the big
gains for the Republicans in Texas reflected a shift among
conservative middle- and upper-class white Democrats.
After years of voting Republican in presidential elections
but identifying as Democrats, they began thinking of
★ CTQ Can the Republican Party be confident
of its continuing control of the state?
themselves as Republicans.
What changes brought Republicans to
What stimulated the change was the behavior of the
power, and what changes will the future
parties and their candidates. Of special importance was
bring to the state?
the liberal shift in policies under Democratic presidents
during the 1960s. Most notable was the expansion of
civil rights, because it seems to have led many Anglo
voters to defect to the Republican Party (and many African American voters to align with
the Democratic Party).8 Ironically, the main proponent of these policies was Texas’s own
President Lyndon B. Johnson (1963–1969). He pushed through a lot of other liberal legislation during the period, and there is reason to think that this also influenced voters’ perceptions and alignments with the parties. From Table 5.2, it is clear that even these effects
were not felt immediately in Texas, as the Democratic lead over the Republicans remained
a sizable 43 percent even in 1972.
The performance of Republican presidents also mattered. The election of Ronald Reagan may have been of particular consequence. His victory over the unpopular Democrat
Jimmy Carter in 1980 began a 12-year run of Republican control of the White House. Under
Reagan the economy boomed, as did his approval ratings, and the Cold War came to an end.
During this short time, the Republicans virtually closed the massive gap on the Democrats
in Texas. The election of George W. Bush to the presidency in 2000 and then again in 2004
helped solidify the Republican realignment in Texas, as he had been a very popular governor
and president in the state.
Party switching by native Texans is only part of the story of realignment. Another factor
involves newcomers to the state, who came in large numbers during the 1970s and 1980s.
These migrants to Texas were less Democratic in their affiliations, and this helped break
down traditional partisan patterns. Perhaps the most important newcomers of all have been
those from within Texas—the offspring of Texas residents. As Texans switched affiliations
and newcomers from other states further diluted the Democratic advantage, young people
reflected their parents’ more balanced partisanship. Moreover, the short-term forces that
swayed their parents tended to have an even greater impact on them, both as children and as
young adults going off to vote for the first or second time.
LM Otero/AP Images
IMAGE 5.3 Republicans have taken great pride in
The Development of the Texas Party System
Sources of Republican Strengths and Weaknesses Republican support
is strong in a broad swath of rural counties (see Figure 5.1) and is concentrated in these areas:
•
•
•
•
•
•
Houston suburbs
Fort Worth area
Midland–Odessa area
Northern Panhandle
East Texas rural counties
Hill Country–Edwards Plateau area
FIGURE 5.1 Results of the 2016 Presidential Election
The map shows the only 27 counties won by Hillary Clinton. Note that Clinton carried more
populous counties like Bexar, Dallas, Harris, and Travis, and Donald Trump carried the smaller
counties outside of South and Southwest Texas.
Dallam
Sherman Hansford Ochiltree Lipscomb
Hartley
Moore Hutchinson Roberts Hemphill
Oldham
Potter
Wheeler
Randall Armstrong Donley Collingsworth
Deaf Smith
Castro
Parmer
Gray
Carson
Swisher Briscoe
Hall Childress
Hardeman
Bailey
Lamb
Hale
Floyd
Cottle
Motley
Cochran Hockley Lubbock Crosby Dickens
Yoakum Terry
Gaines
Hudspeth
Ward
Culberson
Reeves
Martin
Ector
Midland
Crane
Upton
Pecos
Jeff Davis
Terrell
Presidio
Brewster
Garza
Dawson Borden
Andrews
Loving Winkler
EI Paso
Lynn
King
Wilbarger
Foard
Knox
Baylor
Wichita
Archer
Young
Kent Stonewall Haskell
Throckmorton
Scurry
Howard Mitchell
Fisher
Nolan
Jones
Shackelford
Taylor Callahan
Stephens
Clay
Jack
Palo
Pinto
Parker
Fannin
Lamar
Delta
Wise
Denton
Tarrant
Hood Johnson
Eastland
Grayson
Montague Cooke
Collin
Hunt
Rockwall
Dallas
Red River
Kaufman Van Zandt
Ellis
Bowie
Titus
Hopkins
Cass
Franklin Morris
Rains Wood
Upshur Marion
Smith
Gregg
Harrison
Erath Somervell
Henderson
Panola
Rusk
Navarro
Hill
Comanche
Bosque
Runnels Coleman Brown
Shelby
Anderson Cherokee
Hamilton
Freestone
Nacogdoches
Tom Green
McLennan Limestone
Mills
San Augustine
Coryell
Reagan
Concho
Houston
Irion
Leon
Sabine
Angelina
Falls
McCulloch San Saba Lampasas
Trinity
Newton
Bell
Robertson Madison
Jasper
Schleicher
Menard
Polk
Burnet
Milam
Tyler
Walker
Crockett
Mason Llano
Brazos
Williamson
San Jacinto
Grimes
Sutton
Kimble
Burleson
Travis
Hardin
Montgomery
Gillespie Blanco
Lee
Washington
Liberty
Orange
Bastrop
Kerr
Hays
Edwards
Austin Waller
Jefferson
Kendall
Val Verde
Fayette
Caldwell
Harris
Real
Comal
Chambers
Bandera
Colorado
Guadalupe
Fort Bend
Gonzales
Bexar
Galveston
Lavaca
Kinney
Medina
Uvalde
Wharton
Wilson
Brazoria
DeWitt
Maverick
Jackson
Atascosa
Zavala
Frio
Karnes
Matagorda
Victoria
GoIiad
McMullen
Calhoun
Dimmit
Bee
La Salle
Live Oak
Refugio
Aransas
San Patricio
Jim Wells
Webb
Nueces
Duval
Glasscock
Sterling
Coke
Kleberg
Zapata Jim Hogg Brooks
Kenedy
Donald Trump (R)
Hillary Clinton (D)
Starr
Hidalgo
Willacy
Cameron
★ CTQ
What does this mean for the future of the Democratic Party in Texas? Speculate on
the strategy Republicans may use to maintain their electoral dominance.
Office of the Texas Secretary of State.
123
124
5
Political Parties
Republican Party support is weaker in the following areas:
•
•
•
South Central Texas
Central cities of Austin, Dallas, Houston, and San Antonio
South and Far West Texas
Public opinion research shows that the Republican Party appeals more to white voters,
those who attend church regularly, businesspeople, and families with higher incomes.
Not all people in these categories identify with and vote for Republicans, of course,
but they are more likely to do so. Not surprisingly, Republican support is strongest in
suburban communities and rural and small towns, and this is true around the country.
Texas also has a fairly large number of active and retired military officers, who tend to
be Republicans.
The party has benefited from the economic growth and prosperity that occurred in Texas
from the end of World War II to the early 1980s. During this period, newcomers from more
Republican parts of the country were lured to the state by a sympathetic business climate or
by the promise of jobs. These transplanted Texans joined more prosperous native Texans to
provide a political climate more conducive to Republican Party politics.
Conservatives and Moderates and Texas Republicans
evangelical or
fundamentalist
Christians
A bloc of conservative Christians who
are concerned with
such issues as family,
religion, abortion, gay
rights, and community morals, and often
support the Republican Party.
party platform
The formal issue
positions of a political party; specific
elements are often
referred to as “planks”
in the party’s platform.
tea party
A faction or group
of very conservative
Republicans generally resistant to any
compromise of its
principles.
As the Republican Party became dominant in Texas politics, it began to experience some of
the same sort of factional differences that had characterized the Democratic Party in Texas for
years. For example, a bloc of conservative Christians, sometimes referred to as evangelical or
fundamentalist Christians, began in the 1980s to play an increasingly prominent role in the
Texas Republican Party. These social conservatives are concerned with such issues as family,
religion, and community morals, and it has been effective in influencing the party platform,
whose “planks” contain the party’s formal issue positions. Associated with a broad spectrum
of Protestant Christianity that emphasizes salvation and traditional values, evangelical voters
are likely to support culturally conservative politics.
Another group that has grown in influence within the Republican Party is the tea party,
a faction or group of very conservative Republicans generally resistant to compromise of their
principles. This is a conservative movement that began at the grassroots level. It is strongly
opposed to the national debt and generally favors lower government spending and involvement in citizens’ lives, much like the Libertarian Party. The movement began in response to
the federal bailout of financial institutions in 2008 and President Obama’s health care initiative the following year, but it has expanded greatly over the years since. A leading tea party
activist further explores the motivations of the movement in our Politics in Practice feature
later in this chapter.
Although tea party members deny a formal association with either political party, they
have worked mostly within the Republican Party and have been responsible for the nomination of numerous conservative candidates around the country. These candidates have not
always fared well in general elections, sometimes proving to be too extreme or inexperienced. In Texas, however, the tea party has supported many successful candidates, including
Lieutenant Governor Dan Patrick and U.S. Senator Ted Cruz, who went on to become a
leading presidential candidate in the 2016 GOP primary.
The control of the state’s Republican Party by the conservative, or right, wing is opposed
by the more moderate, or centrist-conservative, wing. Many of these centrists fear that the
radicalism of the right will interfere with the party’s ability to win elections. These are
often called “establishment” Republicans, many of whom represent business interests. They
The Development of the Texas Party System
IMAGE 5.4 Republican candidates like Gov-
ernor Greg Abbott have been able to appeal to
Texans’ conservatism by emphasizing religious
themes such as opposition to abortion and
same-sex marriage.
Can the Democrats Still Compete? Some
observers believe that Texas will emerge as a competitive
two-party state in the near future. They note that Democrats
still have considerable resources in many local governments,
especially in several major cities and in South and Far West
Texas.
Democratic strategists are also encouraged by the state’s
growing Latino population. Ethnic and racial minorities now
make up a majority of the state’s population, and projections are
that the Latino population in Texas will surpass non-Hispanic
Write a well-composed essay
★ CSQ
whites (Anglos) in 2020.9 In many counties, particularly along
or form a team to create a wellthe U.S.–Mexico border, Latinos already are in the majorillustrated presentation identifying
ity. This is clear from Figure 5.2, which depicts the Latino
the differences between Democrats
percentage of the population in each of Texas’s 254 counties.
and Republicans on major social and
Given that they tend on average to support Democratic candieconomic issues. You should be able
to easily identify at least a dozen
dates, the growing number of Latinos could cause the phenomdifferences. How do policy differenon of tipping—that is, when a group grows large enough
ences affect the electoral coalitions
to change the political balance in the electorate. One limiting
that determine a party’s success?
factor is the low voter turnout rates among Latinos, but if their
Explain the demographic differpopulation continues to grow, and especially if interest and
ences between the two parties.
participation in politics increase and the proportion of Latinos
voting for Republicans declines, a significant Democratic
resurgence could occur.
tipping
Republican party strategists hope that many Latino voters will support the GOP because
A phenomenon that
they believe their party is more in tune with some Latino voters’ identification with conseroccurs when a group
vative social positions on issues such as abortion and family values. Democrats, on the other
grows large enough to
hand, still believe that Latinos will be attracted to their party because of its traditional support
change the political balance in the electorate.
for civil rights and spending on public services, and because many Latinos have come to regard
Republicans’ more strident anti-immigrant positions as an affront to their heritage and identity. Some observers have suggested that a substantial number of Latino voters are persuadable
AP Images/Tony Gutierrez
are generally economic conservatives, who want to keep taxes
low and limit the government’s interference in the market,
but differ from the tea party faction because they frequently
support public spending on infrastructure and education.
They also are more tolerant of immigration and civil rights
for ethnic and sexual minorities. The establishment Republicans differ from Christian conservatives by placing less of a
premium on moral issues. The ideological and policy direction of the party thus remains unclear, both in Texas and in
other states.
The Republican Party has failed to generate much support
among the state’s minority voters. African American identification with the GOP consistently hovers around 5 percent.
The Republican Party has had greater success among Latinos
than African Americans; for example, Governor Abbott won
44 percent of the Latino vote in the 2014 election. Still, a substantial majority of Latinos consistently vote for Democratic
candidates in Texas.
125
126
5 Political Parties
FIGURE 5.2 Texas Latino Population by County
Democrats pin their hopes for the future on demographic changes such as the fast growing
Latino population. Latinos already constitute 40 percent of the Texas population, but many
are not yet eligible to vote because they are too young or are not citizens. Among those who
are eligible, Latino turnout rates have been lower than for other ethnic or racial groups.
Texas Hispanic Population
2012
0–9%
10–19.9%
20–29.9%
30–39.9%
40–49.9%
50%+
★ CTQ
How will demographic changes likely affect the future of Texas politics?
Cengage Learning
swing voters
Voters who are not
bound by party identification and who
support candidates of
different parties in different election years.
and that they are potentially swing voters, those who are not bound by party identification
and who support candidates of different parties in different election years.
The GOP cannot assume that Latino party identification will trend its way, particularly
given the growing conservatism of the party and its frequent use of rhetoric that is considered
by a majority of Latinos to be anti-Latino. Most important may be the current conservative shift on immigration inspired by Donald Trump during the 2016 presidential election
campaign. But, the Democratic Party cannot afford to take this portion of the electorate
The Organization of Texas Political Parties
for granted, as voter turnout is critical. While young voters are increasingly Latino and also
strongly support the Democrats, they do not vote at high rates. How things will play out in
the years to come remains to be seen.
The Organization of Texas Political Parties
LO 5.3 Evaluate the importance of party organization.
To better understand how political parties are organized in Texas, we can divide the party
machinery into two parts: the temporary, consisting of a series of conventions at various
levels that happen in each election year, and the permanent, consisting of people elected
to leadership positions in the party and who continue in those positions between elections
(see Figure 5.3).
FIGURE 5.3 Texas Political Party Organization
This figure shows the three levels of state party organization in Texas. Party primary voters elect precinct and county chairs who serve as the county executive committee. Primary
voters may also attend neighborhood precinct conventions that elect delegates to higher
conventions that fill out the rest of the state’s party structure.
Temporary
Organization
Permanent
Organization
State
Convention
State Chair,
Executive
Committee
County
or District
Convention
County
Executive
Committee
Precinct
Convention
Precinct and
County Chairs
Attend
★ CTQ
Party Primary
Voters
Elect
Explain how voting in primaries and attending precinct conventions are an easy way for you to become a “grassroots” activist
and be a part of both the temporary and permanent party organizations. How does this party organizational structure show
that parties are decentralized?
127
128
5 Political Parties
Temporary Party Organization
Consisting of precinct, county or district, and state conventions, the temporary party organizations select delegates to higher conventions that ultimately write party rules, approve the
state party platforms, and select the permanent party structures that manage party affairs
between conventions.
precinct convention
A gathering of party
members who voted
in the party’s primary
for the purpose of
electing delegates to
the county or district
convention.
Precinct Convention The starting point of party activity and a key to getting involved
in politics is the precinct convention, a gathering of the party faithful that is open to primary
voters. After the March primary in even-numbered years, the Democratic and Republican
parties each hold conventions in most of the voting precincts in the state. The agenda of the
precinct convention includes adoption of resolutions to be passed on to the county or senatorial
district convention and selection of delegates to the county or senatorial district convention.
Although eligibility for participation in this grassroots level of democracy is open to all
who vote in the first primary election, attendance is minimal—usually only 2 to 3 percent of
those who vote. This low attendance makes it possible for a small, determined minority of the
electorate to assume control of the precinct convention and dominate its affairs. Sometimes
contending factions or supporters of different presidential candidates are bitterly divided,
and some of the attendees will walk out and conduct their own convention, called a “rump
convention.” Then both precinct groups will appeal to the credentials committee appointed
by the county executive committee. The credentials committee will decide which set of rival
delegates is officially seated at the county or district convention. Although fairness and justice may occasionally be considered, the decision on which group to seat usually depends on
which faction is in the majority on the credentials committee.
County and Senatorial District Conventions In the weeks after the primary and the precinct conventions, county and state senatorial district conventions are held.
In the most populous counties, the county convention has given way to state senatorial district conventions within those counties. Delegates vote on resolutions and select delegates and
alternates to attend the state convention.
As with the precinct convention, liberal or conservative factions or those representing
different presidential candidates will seek to dominate the selection of delegates. Walkouts
followed by rump conventions may occur at the county or even the state level. In Texas, bitter intra-party conflict has historically characterized the Democratic Party more than the
Republican Party, but that has changed as Republican primaries and conventions have grown
in importance and the tea party has emerged.
State Conventions Both the Democratic and Republican parties in Texas hold state
conventions in late spring or early summer in even-numbered years. The major functions of
these biennial state conventions are to do the following:
• Elect state party officers.
• Elect 62 of the members to the state executive committee, two from each senatorial district.
• Adopt a party platform (see Table 5.3 for examples of recent Texas party platform planks).
• Certify to the secretary of state the candidates nominated by the party in its primary.
If it is a presidential election year, the state convention also does the following:
• Select the party’s nominees to serve as Texas’s members of the national party executive
committee.
• Select nominees for the state’s 38 presidential electors, who will serve if the party carries
the state in the presidential election.
• Elect most delegates to the party’s national nominating convention based on the presidential primary vote.
The Organization of Texas Political Parties
129
TABLE 5.3 Excerpts from Recent Texas Democratic and Republic Party
Platforms
This table shows some selected planks in recent Democratic and Republican platforms.
Texas Democrats
Texas Republicans
Believe a democratic government exists to help us achieve
as a community, state, and nation what we cannot achieve
as individuals, and that it must serve all citizens
Believe in personal responsibility and accountability; a
free-enterprise society unencumbered by government;
self-sufficient families, founded on the traditional
marriage of a natural man and a natural woman
Believe government should “provide multi-language
instruction, beginning in elementary school, to make
all students fluent in English and at least one other
language . . .”
Support “American English as the official language of
Texas” and “encourage non-English-speaking students
to transition to English within three years”
Enact a constitutional amendment to prevent extending
the sales tax to food and medicine and oppose efforts to
impose a national sales tax
Support a national sales tax collected by the
states once the IRS is abolished and the Sixteenth
Amendment to the U.S. Constitution is repealed
Support abortion by trusting “the women of Texas to
make personal and responsible decisions about when
and whether to bear children … rather than having these
personal decisions made by politicians”
Oppose abortion because “all innocent human life
must be respected and safeguarded from fertilization
to natural death; therefore, the unborn child has a
fundamental individual right to life . . .”
Would abolish the death penalty in Texas and replace it
with the punishment of life imprisonment without parole
Believe that “properly applied capital punishment is
legitimate, is an effective deterrent, and should be
swift and unencumbered”
Believe “the state should establish a 100% equitable school
finance system with sufficient state revenue to allow every
district to offer an exemplary program”
Oppose “teaching of Higher Order Thinking Skills
(values clarification), critical thinking skills and similar
programs” that “have the purpose of challenging
the students’ fixed beliefs. … We support reducing
taxpayer funding to all levels of education institutions.”
Support “a path for children of undocumented parents, who
were brought here as minors, to earn legal status and future
citizenship by going to college or serving in the military”
Support limiting citizenship by birth “to those born to
a citizen of the United States with no exceptions”
Believe “the minimum wage must be raised, enforced, and
applied meaningfully across-the-board . . .”
Believe “the Minimum Wage Law should be repealed”
Texas Democratic Party and the Republican Party of Texas.
 How does each of these platform positions reflect the ideological differences
between conservative and liberal positions on public policy?
Historically, Texas parties used the convention system to express their preference for candidates for their party’s presidential nomination. Voters who wanted a role in choosing their
party’s presidential candidate had to attend precinct conventions to choose delegates to the
county or district conventions and ultimately to the state conventions. The state party conventions then had a free hand in choosing delegates to the national convention, which selects
the party’s nominee for president.
Over the years, each party has moved toward using a presidential preference primary
system to allow its party’s voters to express their preference among candidates seeking their
party’s nomination for president. Today, most of the delegates that the state party conventions
select to attend national nominating conventions must be pledged to presidential candidates
presidential
preference primary
A primary election
that allows voters to
express their preference among the
candidates seeking to
become their party’s
presidential nominee.
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Political Parties
based on the outcome of the presidential primary. However, the state convention does sometimes send stealth delegates to the national convention who have pledged to one presidential
candidate, but whose loyalties are with another.
Permanent Party Organization
The permanent structure of the party machinery consists of people selected to lead the party
organization and provide continuity between election campaigns.
Precinct-Level Organization At the lowest, or grassroots, level of the party structure is the precinct chair, who is chosen by the precinct’s voters in the primary for a two-year
term. Often the position is uncontested, and in some precincts, the person can be elected by
write-in vote. The chair serves as party organizer in the precinct, contacting known and potential party members. The chair may help organize party activities in the neighborhood, such as
voter registration drives. The precinct chair is also responsible for arranging and presiding over
the precinct convention and serving as a member of the county executive committee.
County-Level Organization A much more active and important role is that of
county chair. The voters choose who will hold this office for a two-year term in the party
primary. The chair presides over the county executive committee, which is composed of all
precinct chairs. The county chair determines where the voting places will be for the primary
and appoints all primary election judges subject to approval of the county commissioners
court. Accepting candidates for places on the primary ballot, the printing of paper ballots,
and the renting of voting machines are also the chair’s responsibilities. Finally, the chair,
along with the county executive committee, must certify the names of official nominees of
the party to the secretary of state’s office.
The county executive committee has three major functions: assembling the temporary roll of
delegates to the county convention; canvassing the returns from the primary for local offices; and
helping the county chair prepare the primary ballot, accept filing fees, and conduct a drawing
to determine the order of candidates’ names on the primary ballot. This is an important consideration since low-information voters may opt for the first name they come across on the ballot.
State-Level Organization Delegates to the state convention choose the state
chair—the titular head of the party—at the state convention for a two-year term. The duties
of the chair are to preside over the state executive committee’s meetings, call the state convention to order, handle the requests of statewide candidates on the ballot, and certify the
election runoff primary winners to the state convention.
The state executive committee includes a chair and a vice chair of the opposite sex. In
addition, the Democratic and Republican state convention delegates choose one man and
one woman from each of the 31 state senate districts. Unlike the Republicans, the Democrats
also include several members from various special caucuses on their state executive committee. The main legal duties of the state executive committee are to determine the site of the
next state convention—sometimes a crucial factor in determining whose loyal supporters
can attend because the party does not pay delegates’ expenses—to canvass statewide primary
returns, and to certify the nomination of party candidates.
The state executive committee also has some political duties, including producing and
disseminating press releases and other publicity, encouraging organizational work in precincts and counties, raising money, and coordinating special projects. The state committee
may work closely with the national party. These political chores are so numerous that the
executive committees of both parties now employ full-time executive directors and staff
assistants.
The Functions of Political Parties
The Functions of Political Parties
LO 5.4 Assess the functions of political parties in American and Texas
politics.
Political parties developed and survived because they perform important functions. In his
tripartite conceptualization of parties, V. O. Key identified three main “faces”: the party in
the electorate, the party as organization, and the party in government.10
The Party in the Electorate
The party in the electorate refers to the identification of citizens with the parties, which we
have already discussed in some detail in this chapter. The nature and degree of this party
attachment is important. As mentioned, it influences not only what voters do, but also how
they view the political world. These views, in turn, influence what the party organization and
party in government do.
The Party as Organization
The party as organization is the formal structure of the party itself, which we have discussed
in detail as well. This is what first comes to mind for most people when they think about what
a political party is: the precinct, district, and state (and national) conventions that parties
run in election years, and the officers at the various levels who actually set up and run party
activities, including the primaries themselves.
Party organizations do more than this, however. They actively recruit candidates for
office, and though they do not control how voters cast their ballots, they can try to influence who wins the primary election. Party organizations also work to help the primary winners win in the general election. This involves raising money, providing services (campaign
organization and advice), and getting out the vote. Getting out the vote includes interactions
with the party in the electorate by telephone, social media, and even door-to-door canvassing. The more organized the party, the more effective it is in getting out the vote for its
candidates.
In addition to mobilizing partisans, party organizations also reflect and communicate
their opinions. This happens partly via the primaries and conventions the parties administer, as these allow the party in the electorate to determine who wins the primary—and thus
represents the party in the general election—and to shape the party’s platform of positions.
There are other less formal channels of communication in party organizations that enhance
the representation of the party in the electorate. Of course, members of the party organizations and the party in government have their own preferences.
The Party in Government
The party in government consists of the elected officials in government and what they do
while there. This is something we haven’t addressed much at all in this chapter, although
future chapters will. For now, consider that the party in government in Texas includes
the governor and other statewide officials and also the members of the Texas Legislature.
Co-partisans work together in ways that can determine how government institutions work
and which policy outputs they produce. Elected officials of the same party have similar
preferences on many issues, and they have a shared interest in pushing forward their
positions.
The parties in government also serve other functions. They are the parties’ most visible
faces. Elected officials are on the political front lines, so to speak, driving the policy agenda
and the policy-making process. They are at the center of political advocacy and debate.
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Political Parties
How Does Texas Compare?
executive and legislative branches of government (blue
for Democratic, red for Republican) and states in which
control is divided, depicted in tan. (Nebraska, shown in
white, has a nonpartisan legislature, so it is not possible
to code party control of both branches.) Keep in mind
that the map shows party control in the states and does
not necessarily match familiar electoral college maps for
presidential elections.
Party Control of Government in the 50 States
Research in political science has shown that states with
higher levels of party competition for control of government have higher levels of voter turnout and also tend to
spend more on social programs. Although there is some
competition between the two parties in all states, some
states are much more competitive than others. Figure 5.4
shows the states in which one party controls both the
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
PA
IA
NE
NV
UT
IL
CO
CA
AZ
NY
MI
WY
KS
OK
NM
OH
IN
WV
MO
VA
KY
NH
MA
CT
NJ
RI
DE
MD
NC
TN
AR
SC
MS
AL
GA
TX
LA
AK
FL
HI
Unified Republican Control
Unified Democratic Control
Divided Control
FIGURE 5.4 Party Control in the 50 States: How Texas Compares
The map illustrates party control of government in the American states in 2016.
National Council of State Legislatures.
FOR DEBATE
★ SRQ
How would party competition make a
state’s political system more responsive
to residents’ needs and preferences?
★ CTQ
Based on demographic changes in
Texas, is the state likely to become more
or less competitive in the future?
★ CTQ
How would you expect public policies
to differ in states controlled by
Republicans and those controlled by
Democrats? Would you expect states
with divided control to develop moderate compromises or gridlock?
Applying What You Have Learned about Texas Political Parties
Not surprisingly, they occupy the attention of the mass media. The parties’ leading politicians use the media to frame the political debate for voters, especially their partisans. The
goal, of course, is to communicate their positions to the public and mobilize support. In the
process, the parties in government help voters make sense of the issues, if only imperfectly.
Providing a basic understanding of the parties’ positions on the issues of the day allows voters to make a more informed choice between the parties in the voting booth. This is critical
to representative democracy.
Applying What You Have Learned about
Texas Political Parties
LO 5.5 Apply what you have learned about Texas political parties.
You have learned how Democrats and Republicans often differ on ideology and the role they
see for government, and how factions have developed with ideological differences even within
the same party. We invited a passionate Texas political practitioner, Julie McCarty, to put a
face on the ideology of the tea party movement and to give you an insight into its motivation
as it strives to reshape the Texas Republican Party.
Julie McCarty is the founding president of the NE Tarrant Tea Party (NETTP). In less
than six years, McCarty and her colleagues built the NETTP into the most visible and influential local tea party group in Texas, and into what is widely considered to be the single most
powerful force in Tarrant County Republican politics. Over the past two primary election
cycles the NETTP’s influence has stretched beyond Tarrant County to affect GOP primaries
statewide.
After you have read her essay, we will ask you to use your critical thinking skills to distinguish between the rival factions of the Republican Party and apply what you have learned
about the differences between liberals, moderates, and conservatives. And, regardless of
your political disposition, we will ask you to reflect on how political activity can enrich your
personal, social, and emotional life.
POLITICS IN PR ACTICE
One Face of the Texas Tea Party
by Julie McCarty
President of the NE Tarrant Tea Party
September 12, 2009, is a day I will never forget. It’s the day I joined nearly 2 million
Americans in a march on Washington. We were protesting our out-of-control government
and the national debt in the first-ever tea party. My husband and two-year-old daughter
were with me, and it changed our lives. To have that many people in agreement with a unified message—and not only that but also willing to apply funds and effort to share that
message—well, that meant we were not alone.
The discovery that one is not alone is what fuels tea party organizations. Many of them
sprang up around the country in 2009—just local gatherings of Americans who have had
★
133
134
5 Political Parties
enough of being ignored by the politicians who are supposed to be representing them. People
wanted to be heard and wanted to find community. Many groups took the opportunity to
blow off steam and have disbanded since that initial flash, but there are still many strong
and active groups fighting to make a difference, and nowhere is the tea party stronger than
in Texas. I’ll even go so far as to say that nowhere is the tea party stronger than in Tarrant
County, Texas. And if you’ll allow me, I can take it a step further, and tell you the real
strength is in NE Tarrant County.
Tarrant County is the last red metropolitan area in our state. If Tarrant turns blue, Texas
turns blue. And if Texas turns blue, the country will not see another Republican president for
a very long time. Fort Worth is the biggest city in Tarrant County, and Fort Worth is blue. It
is the very solidly red NE corner of Tarrant County that keeps Texas red and maintains hope
for the rest of America!
And this is where the NE Tarrant Tea Party fits in. In 2009 I was given a list of conservativeminded patriots in my zip code and agreed to start the Grapevine Tea Party. Before we
could even launch our group, I was asked to incorporate Southlake as well. We had two
dozen folks show up at our first meeting and determined that going forward, we wanted
guest speakers to educate us on the Constitution, the political process, historical lessons,
and fiscal concerns. Soon after, Colleyville asked if they could join up, and there was talk
of Euless wanting to be involved as well. Rather than take on cities one by one, we changed
our name from the Grapevine/Southlake Tea Party to NE Tarrant Tea Party, incorporating
patriots in fourteen cities—all determined to keep Tarrant County red by educating voters.
Now our meetings draw 150 to 200 people, and double that depending on the guest speaker.
Our board members are widely sought for candidate endorsements, and voters know to turn
to us for trusted voting recommendations. NE Tarrant was the first area in Texas to flip
their State Reps to tea party–backed candidates, and that has triggered a ripple effect into
countywide offices as well. Today, if someone wants to run for office in Tarrant County, we
are their first stop.
But when I say we want to keep Tarrant red, I don’t want to leave the impression that the tea
party is just another branch of the Republican Party. Not at all! In fact, we focus the large
majority of our efforts in fighting the Republican Party. Remember, the tea party rose out of
the frustration of We The People being ignored by our representatives … and in Texas those
representatives by and large are Republican.
Some Republican office holders like to say the tea party is too far right … too fringe. But if
you look at the five principles we espouse, you’ll see they fall directly in line with what the
Republican Party is supposed to stand for:
•
•
•
•
•
Fiscal Responsibility
Rule of Law
Personal Responsibility
National Sovereignty
Limited Government
When you dig right into it, there are few who could actually successfully argue any of those
points, but our representatives certainly try. And as long as they try, the tea party will have its
place. We must. Our freedom requires it!
Chapter Summary
135
Going forward, the tea party will continue to educate voters, as always. That’s what empowers people to make wise decisions at the polls. But as a key part of that, I see us making great
progress in learning to work with other groups. Not only are we starting to communicate
better with tea parties across the state, but we are also making a stronger effort to help smaller
groups get started and grow. When tea party groups statewide broadcast a unified and cohesive message, our voice is louder and our message is stronger. It’s hard to label such a large
group as fringe or conspiracy theorists. We are not extreme … we are just right.
1. How do members of the tea party differ from other Republicans? Why does the author
say that she and her fellow tea party members spend a majority of their time fighting other
Republicans?
2. Explain why the tea party is considered conservative. Compare tea party positions with
those taken by moderates and liberals.
3. What motivates tea party activists? How do shared values form the basis for a sense of
belonging and social interaction within all political groups?
★ Chapter Summary
LO 5.1 Identify the characteristics of American political
parties. There are three fundamental characteristics of political
parties in the United States: (1) the two-party system, (2) pragmatism, and (3) decentralization.
We have two major parties in the United States and Texas
partly because the electoral system—specifically, single-member
districts and plurality elections—makes it hard for third parties to
succeed. Election laws put in place by the two major parties make
it hard for third parties to emerge in the first place.
Parties in the United States and Texas traditionally have been
pragmatic, focused on performance more than policy positions.
This is largely the result of there being two parties, which makes it
necessary to build majority coalitions to compete and to appeal to
voters who are moderate and focused on performance. Recently,
however, parties in the United States and Texas have become
more programmatic, and Democrats and Republicans have
become easier to distinguish.
Parties in the United States and Texas are decentralized, with
much of the control of the nominating process (the primary) and
party machinery in the hands of state and local leaders and voters.
LO 5.2 Understand the evolution of the party system in
Texas. For much of its history, Texas was a one-party Democratic
state. Until recently, one-party dominance meant that the election to select the Democratic Party’s nominees—the Democratic
primary—was the most important election in Texas. Moderate and
conservative factions within the Democratic Party became the key
political players.
After years of domination by the Democratic Party, Texas
began to experience strong two-party competition in the 1980s,
and in the late 1990s the Republicans became the dominant party
in Texas. By the turn of the century, political realignment was fairly
complete. By 2003, the GOP controlled the governor’s office, all
other statewide offices, and both chambers of the state legislature;
in 2004, Republicans captured a majority in the state’s congressional delegation. The Republicans will no doubt remain dominant
in the near future; what will happen in the long run is less clear,
particularly as the state’s Latino population grows and becomes
more involved in politics.
LO 5.3 Evaluate the importance of party organization.
Political parties consist of permanent organizations that manage operations in between elections and the temporary structures which are the conventions that convene only in election
years. Party primary voters attend precinct conventions that
select delegates to county or district conventions which, in turn,
choose delegates to the state convention to write the party platform and the rules that govern the party’s ongoing operations.
LO 5.4 Assess the functions of political parties in
American and Texas politics. Despite the hostility of the
Founders to political parties, they have become an important
part of American political life. Parties perform critical functions
in a democracy. They nominate and elect their candidates to
public office, educate and mobilize voters, and run the government at the different levels (local, state, or national).
LO 5.5 Apply what you have learned about Texas political parties. You learned about the policy goals of the tea party
movement, which has become a major faction within today’s
Republican Party, and reflected on the motivations that drive political activists in general. You were given the opportunity to explore
the practical differences within the state’s majority party and how
these differences are expressed in the intra-party politics of the
Republican primary.
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5 Political Parties
Key Terms
dealignment, p. 121
decentralization,
p. 115
evangelical (fundamentalist)
Christians, p. 124
partisan identification,
p. 121
party platform, p. 124
party realignment,
p. 121
position issues, p. 114
pragmatism, p. 114
precinct convention, p. 128
presidential preference
primary, p. 129
swing voters, p. 126
tea party, p.124
tipping, p. 125
two-party system, p. 113
valence issues, p. 114
Review Questions
LO 5.1 Identify the characteristics of American political parties.
LO 5.3 Evaluate the importance of party
organization.
• Explain why there are two major parties in the
• What are party platforms, and how do political
United States and Texas.
• Why have parties in the United States and Texas
traditionally been so pragmatic?
LO 5.2 Understand the evolution of the party system
in Texas.
• Define realignment, and discuss to what extent it has
occurred in Texas politics.
• Discuss the reasons for and describe the events that
led to the rise of the Republican Party in Texas.
parties in Texas produce them?
LO 5.4 Assess the functions of political parties in
American and Texas politics.
• Differentiate between the party in the elector-
ate, the party as organization, and the party in
government.
• How do parties help represent the public in government? Are parties always good agents of the public?
Why or why not?
• Has Texas become a one-party Republican state?
Or is there reason to expect increased competition
between the parties in the future? Why or why not?
Think Critically and Get Active!
Team up with a political party. If you already identify
with one, this is easy; if you don’t, choose a party. To
help you find your way, the state party organizations can
be found at the following sites: www.txdemocrats.org
(@texasdemocrats), www.texasgop.org (@TexasGOP),
www.lptexas.org (@LPTexas), and www.txgreens.org
(@TXGreens), On-campus organizations include the
Young Democrats at www.texasyds.com (@TexasYDs)
and Young Republicans at texasyoungrepublicans.com
(@TexasYRs).
Help select your party’s nominee. Register and vote
in the party’s primary election. To vote in the primary,
you must be registered at least 30 days in advance. In
Texas, you simply decide which party you prefer and vote
to select that party’s nominee. The only real restriction
is that you must choose one party or the other. Go to
your party’s precinct convention or caucus. If you vote
in your party’s primary, you are eligible to attend your
party’s precinct convention. Contact your party chair, go
to your party county executive committee website, or ask
the party officials at your primary polling site to find out
when and where you should attend. Attendance is often
sparse, which means you have a good chance of being
heard and even being elected as a delegate.
Attend your party’s county- or district-level convention.
Delegates selected at the precinct level go on to attend their
party’s county or district convention. Delegates to these
conventions pass resolutions and elect delegates to the state
Think Critically and Get Active!
convention, which is held every two years in May or June.
If you are selected as a delegate to the state convention, you
have become a serious party activist.
Determine whether you are a liberal or
conservative. Sample some liberal and conservative
websites to determine whether you are a liberal or conservative. Link up with the liberal Texas Observer at
www.texasobserver.org (@TexasObserver) and The
Burnt Orange Report at www.burntorangereport.com
(@BR); plug into www.offthekuff.com.
137
For the conservative viewpoint, visit the websites of
Texas Insider at www.texasinsider.org (@texasinsider)
and Empower Texans at www.empowertexans.com
(@EmpowerTexans) and take a look at Breitbart Texas at
www.breitbart.com/texas (@BreitbartTexas).
★ PRQ
If you are going to be politically
active, why is it important to know
who shares your viewpoints? Why is
it important to understand the viewpoints of people who differ with you?
6
Interest Groups
Pro-life and pro-choice interest groups rally in the Texas Capitol dome as state Senator Wendy Davis filibusters a bill
limiting abortions. In this chapter, you will explore the wide variety of tactics that interest groups use to influence public
policy in the state.
Tina Phan/Newscom/Tribune News Service/AUSTIN/TX/USA
Learning Objectives
LO 6.1 Define interest groups and identify their major types.
LO 6.2 Describe how interest groups influence public policies in Texas.
LO 6.3 Analyze the political balance of power among interest groups in Texas.
LO 6.4 Evaluate the role of interest groups in Texas politics and policy formulation.
LO 6.5 Apply what you have learned about interest groups.
Types of Interest Groups
C
itizens may act alone to influence government, and millions do. But when citizens join
together in a voluntary organization that strives to influence public policy, they act as
an interest group, sometimes known as a pressure group. Interest groups often play a highstakes political game that determines who gets what from state government and who pays for
it. As Congresswoman Barbara Jordan famously said, “The stakes are too high for government to be a spectator sport.”
Interest groups compete with each other as they strive to benefit from the state’s $209.4 billion
biennial budget. Such groups often depend on government outlays, and they solicit policy makers for a piece of government spending. Construction companies ask the governor to support
increased spending on infrastructure projects. Public schoolteachers pressure the legislature for
more resources for public education. Advocates for low-income Texans ask lawmakers to increase
Medicaid spending and expand Medicaid coverage. Many interest groups press the government
to spend more, but usually advocate for less taxation—especially on their own members.
Business and professional groups plead for state regulations friendly to their interests.
Because Texas’s $1.7 trillion state economy represents a significant share of the national market, out-of-state producers wanting to sell in Texas modify their goods and services to comply
with Texas regulations. As a result, Texas regulations can ripple out to other states, and they
can determine what entire industries produce and how they produce it.
For some interest groups, their fundamental values or their very way of life is at stake in
public policy making. Some ethnic/racial identity–based groups seek government protection
for their civil and political rights. Certain faith-based groups try to use government to support their religious values by banning abortion, contraception, or same-sex marriage while
gun rights groups urge passage of laws to expand the right to carry firearms. Environmental
groups fight for government restrictions on pollution; some agricultural groups fight to prevent changes to the state’s agricultural tax exemption.
So many groups, perhaps thousands of them, have their interests at play in the political
game that we cannot describe every group and its goals individually. Instead, you should
understand the broad types of interest groups that pursue influence in Texas government and
policy making.
Types of Interest Groups
LO 6.1 Define interest groups and identify their major types.
Interest groups can be classified in a multitude of ways, but the simplest is to categorize them
according to their primary purpose—economic, noneconomic, or mixed. Table 6.1 gives
some examples of Texas interest groups in all three categories.
Economic Groups
Economic interest groups seek financial advantages for their members. Business and agricultural groups are interested in keeping their taxes low, securing subsidies, limiting regulation, and receiving government contracts to increase profits. Professional groups want to
limit entry into their professions to reduce competition; public education groups fight against
school privatization and for increased salaries and benefits for teachers. Labor unions seek
generous workers’ compensation, better workplace safety regulations, and laws to make it
easier for workers to organize unions.
Noneconomic Groups
Noneconomic groups seek the betterment of society as a whole or the reform of the political,
social, or economic systems in ways that do not directly affect their members’ pocketbooks.
Personal (or civil) liberties and environmental groups maintain that the beneficiaries of their
139
interest group
A voluntary organization that strives to
influence public policy;
sometimes known as a
pressure group.
140
6
Interest Groups
TABLE 6.1 Interest Group Classifications and Selected Examples
Table 6.1 shows the three types of interest groups and examples of each.
Classification
Sector
Examples
Economic
Agriculture
Texas Farm Bureau
Business
Texas Association of Business
Energy
Texas Oil and Gas Association
Labor
Texas AFL-CIO
Occupations &
Professions
Texas Association of Realtors, Texas Automobile Dealers
Association, Texas Medical Association, Texas Trial
Lawyers Association
Tort Reform
Texans for Lawsuit Reform
Abortion
NARAL Pro-Choice Texas, Texas Right to Life
Environment
Environment Texas, Texas League of Conservation Voters
Personal
Liberties
American Civil Liberties Union of Texas, Texas State Rifle
Association
Public Interest
Public Citizen Texas, Texans for Public Justice
Public Policy
Center for Public Policy Priorities, Texas Public Policy
Foundation
Education
Texas State Teachers Association
Group Rights
Equality Texas, League of United Latin American Citizens,
Mexican American Legal Defense and Education Fund,
National Association for the Advancement of Colored
People
Noneconomic
Mixed
 Visit these groups’ websites, find out which public policies they advocate, and
then use their policy agendas to show the difference between economic and
noneconomic interest groups.
efforts are the members of society—things like personal freedom or clean air and water that
cannot be directly measured entirely by self-interest. Political reform groups, such as Public
Citizen, think of themselves as “public interest” groups because they believe that they are literally acting on behalf of the public. Many individuals who join noneconomic interest groups
are motivated by personal values and intense passion like members of the Texas Right to Life
movement, who have strong beliefs about conception and when life begins.
Mixed Groups
Many groups do not fit neatly into either the economic or noneconomic classification because
they pursue social goals that also have clear economic effects. Groups fighting discrimination
on the basis of age, disability, ethnicity/race, gender, or sexual orientation argue that such practices are not only a form of social injustice but also an economic problem that affects wages and
promotions in the workplace. Groups pursuing both social equality and economic goals are
classified as mixed or hybrid organizations. Few, if any, demands on the political system affect
all classes of citizens equally. Any public policy comes with both costs and benefits; some will
gain while others will bear an economic burden from almost any government decision.
Interest Groups’ Targets and Tactics
Interest Groups’ Targets and Tactics
LO 6.2 Describe how interest groups influence public policies in Texas.
Interest groups are collections of citizens with shared interests that pursue public policy goals
on behalf of their members. Their interests are narrower than those of political parties. Unlike
political parties, they do not nominate candidates for public office and may work with officials
of both parties to secure their goals. Although interest groups sometimes endorse and support
candidates for office, their primary purpose is to influence government policy makers.
Interest groups use a variety of tools to influence state decision makers, and they adapt
their tactics to target specific officials. They make face-to-face appeals to legislative and executive officials, and they file suit in the courts. Interest groups use electioneering and public
relations to sway elected officials by affecting public opinion. Figure 6.1 shows the major
tools interest groups use to influence decision makers.
FIGURE 6.1 Interest Groups’ Tools of Influence
Interest groups adapt their tactics and the tools of influence they use depending on
the part of the political system they are trying to influence. Ultimately their source of
power is the ability to persuade.
Interest Group Target
★ CTQ
Tools of Influence
The
Legislature
Lobbying
Social Lobbying
Providing Information
Targeting Key Legislators
Campaign Contributions
The
Executive
Lobbying
Targeting Rule Making
Targeting Appointments
Co-opting Agencies
Campaign Contributions
The
Judiciary
Targeting Judicial Selection
Filing Lawsuits
Campaign Contributions
The
Political
Environment
Electioneering
Campaign Contributions
Educating the Public
Organizing Demonstrations
Why are some interest groups much more successful than others? What sorts of influence could you bring to bear on government decision making?
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6
Interest Groups
Lobbying the Legislature
Interest groups’ most straightforward tool for influencing public officials is contacting them
directly to advocate for a particular public policy—a practice known as lobbying. Some
interest groups hire individual freelance lobbyists or large lobbying firms to advocate for them
on a single issue, while other interest groups employ full-time lobbyists to work exclusively
for them. Table 6.2 provides a list of the top 10 freelance lobbyists during the 2015 legislative
session according to the widely respected Capitol Inside, which has been ranking lobbyists
after each session for a dozen years. All 10 individuals are principals in large lobbying firms
that have multiple clients. They include Neal T. “Buddy” Jones of HillCo Partners (see the
Texas Insiders feature later in the chapter); Mike Toomey and Bill Messer of the Texas Capitol Group; Rusty Kelley, who leads Blackridge; and Robert
Miller, head of the Public Law practice of Locke Lord LLP.
Of the 10, four are former state representatives and most of
Did You Know? In 2015 there were 1,793 lobthe others have close past or present ties to the state legislabyists registered with the Texas Ethics Commission.
ture and executive branch as advisors or friends/relatives of
influential legislative actors.
lobbying
Directly contacting
public officials to advocate for a public policy.
TABLE 6.2 The Top 10 Hired Guns during the 2015 Legislative Session
Table 6.2 lists the leading non-in-house lobbyists during the 2015 legislative session.
Name
Employer
Political Posts/Ties
Neal T. “Buddy” Jones
HillCo Partners
Former State Representative
Former Chief of Staff to Speaker Gib Lewis
Mike Toomey
Texas Capitol Group
Former State Representative
Former Chief of Staff to Gov. Rick Perry & Gov. Bill Clements
Rusty Kelley
Blackridge
Former Chief of Staff to Speaker Billy Clayton
Bill Messer
Texas Capitol Group
Former State Representative
Former Member of the Transition Team of Speaker Tom Craddick
Robert Miller
Locke Lord
Former Houston METRO Chair
Former State Senate Aide
John Pitts
Texas Star Alliance
Former General Counsel to Lt. Gov. Bob Bullock Twin Brother
of Former House Appropriations Chair
Demetrius McDaniel
Greenberg Traurig
Former Special Assistant to Agriculture Commissioner Jim
Hightower
Robert Johnson
Johnson & Johnson Law
Son of Former House Parliamentarian Brother of Speaker Joe
Straus’s Chief Political Advisor
Allen Blakemore
Blakemore & Associates
Chief Political Advisor to Lt. Gov. Dan Patrick
& Other GOP State Officials
Clint Hackney
Hackney & Company
Former State Representative
Capitol Inside.
 What are some of the common political posts occupied by these leading hired
guns prior to the launch of their present career as a lobbyist?
Interest Groups’ Targets and Tactics
Whether lobbyists work for a single client or have a massive client list to serve, they use a
variety of strategies to influence different branches of government. We will go inside lobbying
operations to explore some of their most effective techniques to win legislators over to their
positions. Then we will show how they are also able to bring members of the executive branch
and bureaucrats around to their views on public policy.
Preparing to Lobby Before a legislative session begins, a lobbyist must have success-
fully completed several tasks: (1) learn who is predisposed to support the cause, who is on the
other side, and which members can be swayed; (2) memorize the faces of the members, their
non-legislative occupations, the communities they represent, and a little about their families;
(3) establish rapport through contact with the members of the legislature; (4) get to know
the staffs of legislators because members can be influenced through them; and (5) know the
legislative issues, including the arguments of opponents.
Lobbyists must plan a strategy for approaching legislators. How do lobbyists approach
members of the legislature or the Texas House and Senate leadership? How do they get in
the door, and what do they say once they get in? How much influence does a legislator’s staff
have on the member’s decisions? Is it necessary to see all 181 members of the legislature, the
lieutenant governor, and the governor?
Because a session lasts only 140 days, interest groups’ best lobbyists know that lobbying
should begin before the legislative session officially begins. The 19-month period between
regular sessions provides lobbyists with ample time to work on relationships, learn what proposals have a chance of passing, draft legislative proposals, and line up sponsors to introduce
bills in the Texas House and Senate during the next session.
Socializing Personality can be a valuable asset to a successful lobbyist. Anyone who
directly contacts public officials to influence their behavior should be extroverted and
enjoy socializing, because the lobbyist’s first job is to become known and trusted by legislators and any executive branch officials who have jurisdiction over the interest he or she
represents.
Lobbyists organize social functions with legislators to allow them to interact in comfortable settings. A lobbyist may invite legislators to lunch or to a party to begin building a
personal relationship of mutual trust. Attending an occasional social event with legislators,
however, is not in itself enough to win their trust. Most successful lobbyists spend years cultivating long-standing relationships with decision makers.
Using Tools of Persuasion Socializing does not obligate legislators to support lobbyists’ proposals, but it does open the door for lobbyists to gain access to legislators, which
at least gives them the chance to make their case. Once in the door, lobbyists find their most
effective tool is providing information useful to a legislator—the facts are often persuasive.
But to maintain a relationship, the lobbyist must build the legislator’s trust, which means
providing sound, accurate information about the legislation the lobbyist is supporting or
opposing. This includes “off-the-record” admission of the pluses and minuses of the legislation. Honesty is, in fact, the best policy for a lobbyist when dealing with a public official.
Lobbyists find that framing the issues in terms of the public interest affects how legislators
react, and they try to define their positions before their opponents have a chance to cast them
in a negative light.
Lobbyists appeal to legislators’ emotions and to their ideologies, or basic philosophies of
government. Lobbyists may gently remind legislators of their interest group’s support in the
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6 Interest Groups
legislators’ past election campaigns or delicately imply
the potential for future support. Although lobbyists
may not legally offer legislators financial support in
exchange for their vote on a bill, it is often simply
understood that groups use their resources to help
elect legislative candidates who support their interests.
Our Texas Insiders feature puts a face on one of the
most successful lobby operations in Texas; HillCo has
numerous clients and primarily represents business
interests.
IMAGE 6.1 This image shows lobbyists crowding
outside the Texas House of Representatives. Lobbying occurs when agents of interest groups make direct
face-to-face contact with public officials in an effort to
affect public policy.
Targeting Key Legislators Not all mem-
AP Images/Harry Cabluck
bers of the legislature are equal, and lobbyists target
those with the greatest impact on bills critical to the
lobbyist’s agenda. Establishing rapport and obtaining
feedback from the very powerful presiding officers—
the speaker of the house and lieutenant governor—are
especially useful. No endorsement is more important
to an interest group than that of the presiding officers.
If an endorsement for the group’s legislative proposal
is not forthcoming, the lobbyist must persuade the
presiding officers to at least remain neutral in the legislative struggle.
Getting the endorsement of the chair of each committee through which the legislation must pass before it can
go to the floor for a vote is an advantage second only to that
of winning the support of the presiding officers. Most of
the “experts” who testify at legislative committee hearings
represent interest groups; lobbyists know that committee
hearings are an ideal forum in which to make their case to
key legislators.
★ CTQ
What are the tools of persuasion that
lobbyists use to convince government
officials to adopt the policies they support? What makes them effective?
Did You Know?
In the 2015 Houston mayoral election, the Andrews & Kurth corporate law PAC
covered almost all of its bases by initially donating
identical amounts to five of the six viable mayoral candidates in the race.
Influencing the Executive Branch
implementation
Administrative agencies carrying out broad
public policies, enforcing state laws, providing public services,
and managing dayto-day government
activities.
discretion
Wide latitude to make
decisions within the
broad requirements
set out in the law.
Interest groups try to influence the Texas Legislature because it creates, finances, and defines
government programs, but they also target the executive branch, where enormous sums of
money, privilege, and prestige are also at stake. The governor affects policy by appointing
officers to head state agencies, and state agencies themselves wield a great deal of power as
they award contracts and develop regulations.
Targeting the Rule-Making Process
The legislature gives the executive branch and its administrative agencies responsibility for
implementation, or carrying out broad public policies, enforcing state laws, providing public
services, and managing day-to-day government activities. The legislature allows executive
agencies a great deal of flexibility as to how to enforce the law; they have administrative
discretion, which is wide latitude to make decisions within the broad requirements set out in
the law. The legislative branch authorizes administrative agencies to establish detailed rules
or regulations that determine how the law shall be applied to actual situations.
Interest Groups’ Targets and Tactics
★
Texas Insiders
HillCo: Texas’s Premier Lobbying Outfit
and Its Influence in Texas
In some years, lobbyists registered with the
Texas Ethics Commission outnumber legislators ten to one. Many lobbyists represent
only one or two clients, but a few of them
conduct sufficient lobby business to qualify
as true Texas insiders. Among them is the
powerful HillCo.
Founded in 1998 by Neal T. “Buddy” Jones
and Bill Miller, HillCo has been involved in
almost every big legislative fight over the
past 19 years. When Bob Perry and Charles C.
Butt saw their business interests threatened,
they hired HillCo to help block a high-profile
2011 bill banning “sanctuary cities.” One
of the most popular and gregarious figures
in the Capitol, HillCo partner Bill Miller
helped manage Tom Craddick’s races for the
speakership in the House of Representatives
and later helped finance former Lieutenant
Governor David Dewhurst’s expensive, but illfated, campaign for the U.S. Senate in 2012.
HillCo’s political action committee (PAC)
donated a total of $1,105,599 to state-level
candidates in Texas during the 2014 election
cycle, the most of any lobbyist PAC.
Among its notable clients, HillCo partners
have represented the following:
•
•
•
•
•
•
•
Alcoa
AT&T
BBVA Compass Bank
Blue Cross & Blue Shield of Texas
Dallas Cowboys
Farmers Insurance
H-E-B Grocery
•
•
•
•
Koch Industries
•
Tesla Motors
Microsoft
Perry Homes
Pharmaceutical Research and
Manufacturers of America (known as “big
PhRMA”)
As its website boasts, “HillCo Partners is a
full-service public and government affairs
consulting firm, providing services in the
lobbying, public policy, communications and
regulatory arenas. We focus on positively
impacting our clients’ agendas relating to
local and state legislative, tax, and regulatory
matters. HillCo’s client list includes some of
the most respected corporations, businesses,
municipalities, associations, franchises
and individuals in America.” HillCo lists its
services as lobbying, policy analysis, regulatory consulting, communications, public
and media relations, procurement, advisory
boards, and grassroots organization.
★ CSQ
Thinking about the role of elites
in Texas politics
Write a carefully constructed essay to
describe the techniques that lobby firms
such as HillCo use to convince legislators and
other policy makers to support their clients’
positions. To make your essay thorough, be
sure to include each of the services listed on
the HillCo website and explain how lobbyists’
personal relationships, developed through
years of contacts with policy makers, affect
the decision-making process.
Sources: HillCo and the Texas Ethics Commission.
Agencies publish proposed rules for public comment in the Texas Register, the official publication of the state that gives the public notice of proposed actions and adopted policies of
executive branch agencies. All citizens have the right to comment in the rule-making process,
but only those aware of and interested in a proposed rule participate. Ordinary citizens do not
subscribe to the Texas Register, but corporations, labor unions, law firms, and interest groups
do. Organized interest groups have a real stake in shaping these regulations that control how
they do business and directly affect their profits. Hence, they know when to send their lobbyists and paid experts to give testimony at public hearings, and they are able to mobilize their
members to call or write agencies about proposed rules.
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6
Interest Groups
Agency administrators actively seek input about
the impact of their rules and policies from the groups
they regulate. The Texas Department of Insurance
needs to know how its proposed rules will affect the
insurance industry; the Texas Railroad Commission
will want to know how new hydraulic fracturing rules
will affect the drilling industry’s use of “fracking” to
extract oil and gas, and the Texas Real Estate Commission consults with the Texas Association of Realtors before adopting new licensing requirements.
IMAGE 6.2 Complaining of foul odors coming from
Gary Coronado/Houston Chronicle
the Southwaste Disposal facility near his property in
Houston, Norman Adams requested a hearing before
the Texas Commission on Environmental Quality to
contest the company’s application to expand its operations. Meanwhile, Southwaste, other industry groups,
and the Texas Association of Business persuaded the
legislature to pass legislation to limit property owners’
right to demand public hearings before the agency.
★ CTQ
How can individual citizens balance the
influence of organized interest groups on
state agency decisions?
clientele groups
The groups most
affected by a government agency’s regulations and programs;
frequently these
interest groups form
close alliances with
the agency based on
mutual support and
accommodation.
co-optation
Such a close alliance
develops between
state regulatory agencies and their clientele
group that the regulated have, in effect,
become the regulators; the interest group
has captured such
complete control of
their regulatory agency
that they are essentially self-regulated.
Targeting the Appointment Process Lobbyists are actively involved in the appointment process,
and they are often able to convince the governor to select
agency heads who are friendly to their interests. Most state
agencies are headed by boards and commissions recruited
from the industry, profession, or group they regulate—
they share the same interests. In fact, Texas law requires
that many regulatory boards must include members of the
business or profession that they regulate. For example, 12
of the 19 members of the Texas Medical Board must be
physicians.
Upon retirement from government service, many
agency officers go to work for the very industries that
they once regulated. Critics doubt that administrative
officers can regulate their own business or profession
and, at the same time, serve the public interest, especially
when they intend to return to the same profession. At
least one observer has concluded that “the state’s business
and political elites are hopelessly intertwined.”1
Co-opting State Agencies Such a close working relationship develops
between interest groups and state agencies that agencies often view the interest groups
that they regulate as their clients and such interest groups are often called clientele
groups. These are the groups most affected by a government agency’s regulations and
programs, and they frequently form close alliances with the agency based on mutual support and accommodation.
Lobbyists for clientele groups often defend “their” state agency as well as its funding and
legal powers. This blurring of the line between the state agencies and a special interest group
is called co-optation (also known as agency capture) when such a close alliance develops
between state regulatory agencies and their clientele group that the regulated have, in effect,
become the regulators. The interest group has captured such complete control of their regulatory agency that they are essentially self-regulated.
A classic example of co-optation, or agency capture, is seen in a recent effort by the Texas
Racing Commission (TRC) to unilaterally authorize horse racing and dog racing tracks to
operate slot machines. The Texas racing industry is in the midst of a significant financial crisis, with the last of the state’s dog racing tracks closing at the end of 2015 and its three major
horse racing tracks—Lone Star Park in Grand Prairie (DFW), Retama Park in San Antonio,
and Sam Houston Park in Houston—in dire straits. The racing industry saw “historical racing” machines, which are the functional equivalent of slot machines, as a partial way out of
their financial dilemma.
Interest Groups’ Targets and Tactics
At the behest of “their” industry, the co-opted or captured TRC in August 2014 authorized
the operation of “historical racing” machines at racetracks, a move that was immediately challenged on very solid grounds as unconstitutional (see Chapter 2) by citizens and state legislators
alike. The result was a more than two-year legal and budgetary standoff between the TRC and
the Texas Legislature, a standoff that was eventually resolved in February 2016 when the TRC
in a narrow 5–4 vote backed down and repealed the rule allowing historical racing, without
any machines ever being installed at tracks. This repeal however took place only after Governor
Abbott had the opportunity to replace several TRC members as their terms expired.
The Texas Commission on Environmental Quality (TCEQ) provides another example
of a clientele group’s influence on a state agency. When the TCEQ ruled that Waste Control
Specialists (owned by Texas billionaire Harold Simmons, who passed away in December
2013) could not import radioactive waste from other states, the company did it anyway.
Waste Control Specialists planned to bury the waste at its waste dump in Andrews County,
a rural county north of Odessa along the Texas–New Mexico border. This site sits in close
proximity to two water tables, including sections of the Ogallala Aquifer—an important
source of water for the High Plains region. The TCEQ warned: “groundwater is likely to
intrude into the proposed disposal units and contact the waste from either or both of two
water tables near the proposed facility.”2
After permission to bring in the waste was initially rejected, the company put its lobbyists
to work. The team included the former executive director of TCEQ, Jeff Saitas. The company lobbied TCEQ’s executive director, Glenn Shankle, who overruled the technical team
and gave Waste Control Specialists permission for the site. A few months later, Shankle left
TCEQ to become a lobbyist for Waste Control Specialists.
Targeting the Courts
Lobbying is one extremely important interest group tool, but interest groups employ a wide
variety of other tactics to influence government policy making as well. For example, interest
groups do not directly lobby judges, but they actively campaign for judicial candidates who
share their viewpoints, they prevail upon the governor to fill court vacancies with friendly
judicial appointees, and they file suit in court to win legal rulings that benefit their interests.
Influencing the Judicial Selection Process Texas is one of a handful of
states that elect their trial and appeals court judges in partisan elections, as you will see in
Chapter 9. Candidates must first win the party’s nomination in the primary and then prevail
in the general election. Voters who elect judges do not usually have a clear understanding of
the law or how it should be applied; instead, they depend on party labels and political campaigns to give them voting cues.
Business groups and law firms, many of them having legal business before the courts,
contribute large amounts to judicial campaigns. In 2014, the winning candidates in races for
four positions on the Texas Supreme Court raised a combined $4.3 million.
Critics argue that large contributions from pro-business interest groups and corporate law
firms have influenced judicial decisions, shifting legal precedent in favor of corporations and
putting procedural hurdles in the way of consumers and workers who might sue them. Even
the U.S. Supreme Court recognizes that very large contributions to judicial candidates creates
a risk that judges will be biased in deciding cases in which megadonors are involved.
Between elections, some judges resign or retire, and the governor is charged with filling
the resulting vacancy until the next election. Because such temporary judicial appointees
usually seek and win election to full terms, interest groups set up massive lobbying efforts to
persuade the governor to appoint judges favorable to their interests. Many Texas judges were
first recruited in this way by interest groups that have much to gain or lose from court rulings.
147
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6
Interest Groups
IMAGE 6.3 The League of United
Mario Tama/Getty Images News/Getty Images
Latin American Citizens (LULAC) sued
the State of Texas in federal court over
inadequate instruction for English language learners.
★ CTQ
Why would ethnic and
political minorities press
their interests in the courts
rather than the legislative
or executive branches?
Filing Suit in Court Major corporations, insurance companies,
and powerful professional groups employ attorneys on their staffs or
have law firms on retainer to defend their interests when workers and
consumers sue them. Influential interests also bring lawsuits to challenge government policies that harm their interests. They may win court
rulings that declare hostile legislation is unconstitutional or that inconvenient executive decisions are illegal. Courts might interpret a law or
administrative rule in such a way that it works to a group’s advantage.
In the past, smaller and less powerful organizations turned to the
courts as a last resort after they had lost policy battles in the legislative
or executive branches. In recent years, however, changes in the state’s
political climate, passage of lawsuit reforms, and decisions by the state
supreme court have made Texas courts less responsive to groups representing environmentalists, consumers, and ethnic/racial minorities.
Some of these groups now simply view filing lawsuits in state courts
as a tactic to attract public attention and media coverage of their cause.
Some of these groups have turned instead to the federal courts to
enforce environmental and consumer protection policies. Chapters 1
and 4 show that various groups have won federal court decisions that
protect voting rights and civil rights. The Mexican American Legal
Defense and Education Fund (MALDEF) and allied interest groups
won a federal court ruling in 2011 requiring adjustments to discriminatory legislative and congressional districts.
Shaping the Political Environment
Besides working to influence state policy makers directly, interest
groups strive to shape the political environment in which policy decisions are made. Interest groups are most effective when they have the
support of the public as well as of industry and community leaders,
and they engage in political campaigns and other public relations
efforts to create a political climate favorable to their agendas.
Electioneering Interest groups use their resources to support
candidates disposed toward their interests. They endorse and recommend that their members vote for the candidate most aligned with their
values; the organizations’ newsletters and websites carry messages of
support for their chosen candidates. Endorsements from organizations
with a large and committed following, like the National Rifle Association or Texas Right to
Life, have the greatest impact. Teachers’ organizations, organized labor, and tea party activists
sometimes help their favorite candidates by providing campaign workers who go door to door,
operate phone banks, engage with potential voters on social media, and hand out literature and
yard signs.
Officeholders are responsive to interest groups’ potential voting power, the value of their
endorsements, and the number of their members who may volunteer in the next election
campaign. As a result, interest groups are most influential when they represent members on
what political strategists call “voting issues”—that is, single issues, such as opposition to gun
control or abortion, about which members feel so passionately as to be decisive for them in
determining how they will cast their ballots. Other groups may represent members who by
and large favor gun control or protecting the environment, but most of their members rarely
decide how to vote based on these single issues alone.
Interest Groups’ Targets and Tactics
Contributing to Campaigns Interest groups may also be influential because they
provide money—a key resource in campaigns. Executives of banks, insurance companies, the
petrochemical industry, and utility companies make large individual contributions and also
contribute through political action committees (PACs, discussed in Chapter 4). Professional
groups such as physicians, trial lawyers, real estate agents, and teachers also form PACs that
aggregate contributions into large sums, which they funnel to their favorite candidates.
Most campaign contributions for the state legislature and the statewide offices come from
large donors. These campaign contributors give large amounts because the state legislature, the
governor, and other elected officials make decisions that affect these donors’ economic well-being
and their other interests. Donors contribute to gain access to public officials, meaning their lobbyists are able to “get in the door” to sit down and talk to them about their needs. Substantial
contributions seem to create an obligation on the part of an elected official to listen when a
contributor calls. Ordinary citizens find access much more difficult to obtain. During the 2014
electoral cycle in Texas, PACs contributed a total of $159 million dollars to state-level candidates.
Table 6.3 lists the top 15 PACs in terms of political contributions during the 2014 cycle.
149
access
The ability to “get in
the door” to sit down
and talk to public officials. Campaign contributions are often used
to gain access.
TABLE 6.3 The Biggest Spending PACs in Texas in 2014
Table 6.3 lists the 15 PACs with the most donations to state candidates during the
2014 election cycle.
PAC Name
2014 Spending
Interest Category
Texans for Lawsuit Reform
$7,016,452
Ideological/Single Issue (Tort Reform)
Texas Assn. of Realtors
6,890,372
Real Estate
Empower Texans
5,498,548
Ideological/Single Issue (Tea Party Conservative)
Texas Assn. of Relators–Issues
4,530,162
Real Estate
Rep. State Leadership Comm.
3,400,135
Ideological/Single Issue (Republican Party)
Republican Party of Texas
3,107,491
Ideological/Single Issue (Republican Party)
ActBlue Texas
2,969,503
Ideological/Single Issue (Democratic Party)
Annie’s List
2,903,957
Ideological/Single Issue (Elect Progressive Women)
Planned Parenthood Texas
2,634,081
Ideological/Single Issue (Reproductive Rights)
Texas Organizing Project
2,549,074
Labor
Texas Democratic Party
2,459,478
Ideological/Single Issue (Democratic Party)
Border Health
2,335,151
Health Care (Border Hospitals/Doctors)
Lone Star Project
2,158,557
Ideological/Single Issue (Progressive)
Conservative Republicans of Texas
2,101,740
Ideological/Single Issue (Social Conservative)
Valero Energy Corp.
1,792,366
Energy
Texans for Public Justice.
 Why are Texas Realtors so actively involved in trying to influence members of the
Texas Legislature and executive branch officials?
150
6
Interest Groups
Money in politics is the hot topic of the day because
of how the startling amount of money candidates raise
and spend in campaigns for elective office at all levels has
Did You Know? Senator John Whitmire,
who has been in office since 1983 and is the “Dean”
skyrocketed. Legislative candidates raised $95 million in
(longest serving member) of the Texas Senate, had
the 2014 election cycle. The 319 candidates vying for seats
$7.0 million in his campaign account in 2016.
in the Texas House raised $66 million, and 68 candidates
for the Texas Senate raised $29 million. The candidates
who ran for governor raised $100 million in 2014. Even
when candidates face little or no opposition, they often raise
IMAGE 6.4 Public employlarge amounts of money; the most powerful legislators are able to put together
ees such as these teachers
huge campaign war chests because megadonors want clout with the legislative
become an economic interest
leadership.
group when they demonstrate
in support of their job benefits.
Educating the Public Interest groups shape the political climate by
AP Images/Deborah Cannon
providing the general public with messages designed to build a positive image
and to promote their viewpoints. Well-funded interest groups employ the services of public relations firms to promote policy agendas even as they burnish
their reputations for honesty, good citizenship, and concern for the well-being
of others.
Interest groups may use their organizations’ magazines, annual reports,
press releases and social media campaigns as vehicles for building their own
reputation and educating the public about the wisdom of policy proposals their
organizations support. They may purchase print, broadcast, and digital advertising to shape and mobilize public opinion, and many interest groups now
sponsor local “grassroots” organizations and political blogs that share their
policy views.
Organizing Public Demonstrations Some interest groups orga-
nize marches and demonstrations to generate publicity for their cause. Press
and social media coverage is all but guaranteed because demonstrations create
a sort of “theater” that is especially well suited for television news and online
videos on media sites, YouTube and other venues. When the legislature is in ses★ CTQ What is the goal of
sion, demonstrations are plentiful. Public school teachers, immigrants’ rights
organizing public
groups, tea party members, and countless others rally in Austin to express their
demonstrations?
opinion on a whole host of bills.
What precautions
Using this kind of tactic is a challenge for interest groups that must enlist
must interest
groups take if they
enough members to be impressive and at the same time keep control of the
are to use pubdemonstration. Violating the law, forging signatures on letters sent to lawlic protests as an
makers, blocking traffic, damaging property, and using obscenities do not
effective tactic?
win support from fellow citizens or public officials. Although some groups
have used these tactics, most have found that civil and sincere protests are
more effective.
Interest
groups
have a clear advantage if they are well organized at the grassroots level and
astroturf lobbying
if
they
can
mobilize
large numbers of supporters to contact officials. Some special interest
Special interest groups
groups have used their financial advantages to orchestrate public demonstrations and social
orchestrating demonstrations to give the
media campaigns designed to give the impression of widespread and spontaneous “grassimpression of wideroots” support for their positions. Such public demonstrations have been dubbed astroturf
spread and spontanelobbying after the artificial grass used in many sports stadiums.
ous public support.
The Balance of Political Power
151
The Balance of Political Power
LO 6.3 Analyze the political balance of power among interest
groups in Texas.
Business and professional groups continue to be the most powerful interests in the state, and
they are frequently aligned with the majority Republican Party. Generally speaking, the most
successful noneconomic interest groups are socially conservative and tea party groups with
agendas that are largely (though not entirely) consistent with business interests. Environmental groups, organized labor, civil rights organizations, and groups advocating for low-income
Texans often support policies at odds with business and usually ally themselves with the
minority Democratic Party. Such groups have comparatively less influence over the public
policy process in Texas than business groups.
Texas’s Most Powerful Interest Groups
One way of gauging which groups have the greatest sway in state government is by looking at the amount of money they spend to lobby state officials. Figure 6.2 shows that the
energy and natural resources business accounted for 19 percent (or at least $31 million) of
all lobbying contracts as compiled from official reports in 2013. The health, finance, and
communications industries were also among the biggest spenders on lobbying. The top five
individual businesses spending the most on lobbying were energy and utility companies
including AT&T, Energy Future Holdings, American Electric Power, Oncor Electric Delivery Company, and CenterPoint Energy. Obviously, such companies have an intense interest
in state utility regulation.
Many smaller interests join together into umbrella organizations, in which industries,
wholesalers, producers, retailers, and professionals form associations to promote common
policy goals by making campaign contributions and hiring lobbyists to represent their
interests. For example, the Texas Medical Association, the Texas Trial Lawyers Association, the Texas Oil and Gas Association, the Texas Association of Realtors, and the Texas
Cable Association reported spending more than $3.6 million lobbying on behalf of their
members during the 2013 legislative session. Texans for Education Reform, representing
private education companies, reported spending more than $600,000 successfully lobbying
the Texas Legislature to expand charter schools, which are publicly funded but operated by
private organizations.
The Texas Association of Business, Texans for Lawsuit Reform, Texas Medical Association, Texas Realtors’ Association, and the Texas Oil and Gas Association have been traditionally regarded as being among the most powerful organizations because they have the money
to maintain permanent headquarters in Austin and employ clerical and research staffs as
well as lobbyists to make their prominence known. Such special interests have full-time staff,
multiple lobbyists, and the ability to disburse sizable campaign contributions. They often
achieve more than resource-poor groups, but other factors also tend to affect which interest
groups win the influence game.
Most registered lobbyists represent business, but business is a huge category, encompassing
both the powerful and the weak. Not everyone in business shares the same viewpoint. Independent and small businesses frequently seek policy outcomes opposed by larger enterprises.
Trucking interests are often at odds with railroad freight businesses; oil and gas companies
have a different perspective from clean energy companies. Business should not be thought of
as monolithic. Powerful business groups may win more than they lose, but they do not own
the government and are not guaranteed success.
umbrella
organizations
Associations formed
by smaller interests
joining together to
promote common
policy goals by making
campaign contributions and hiring lobbyists to represent their
interests.
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6 Interest Groups
FIGURE 6.2 Lobby Spending in Texas
This figure shows which interests spent the most on lobbying by taking the mean of
the minimum and maximum value of their lobbying contracts during the 2013 legislative session. By late May 2013, 1,663 Texas lobbyists reported that 2,820 clients took
out 8,172 paid lobbying contracts worth a grand total of at least $155 million.
Computers and
Electronics
$8 million
Agriculture
Labor
Real Estate $6 million $4 million
$7 million
Transportation
$9 million
Other
$4 million
Energy, Natural
Resources, and Waste
$47 million
Insurance
$9 million
Construction
$9 million
Health
$34 million
Lawyers and
Lobbyists
$13 million
Ideological/Single Issue
$33 million
Finance
$13 million
Communications
$15 million
Miscellaneous Business
$16 million
TOTAL = $237 million
★ CTQ
Search out the policy goals of these big spenders. How many of them represent consumers, workers, or environmentalists?
Source: Texans for Public Justice and the Texas Ethics Commission.
A Tale of Two Lobbying Efforts: Tesla vs. TADA
Just because interest groups belong to the same general industry does not mean that they are
working toward the same common goal. In fact, their goals may be diametrically opposed
and the source of considerable conflict (and spending) during the legislative session. A case
in point is the battle between Tesla Motors and the Texas Automobile Dealers Association
(TADA) during the 2015 legislative session.
Tesla does not employ a traditional dealer-oriented model in whch it sends its electric cars
to dealers who in turn sell the cars to the public. Instead, it avoids the middlemen dealers and
sells its cars directly to consumers. That practice, however, is against the law in Texas, meaning the only way Texans can buy one of Tesla’s Model S (pictured in Image 6.5), Model X, or
Model 3 cars is to order it online.
153
After testing the waters during the 2013 legislative sesIMAGE 6.5 Tesla Motors waged an aggressive but
sion, Tesla CEO Elon Musk went all out during the 2015
ultimately unsuccessful battle during the 2015 legislalegislative session in a bid to obtain the passage of legistive session to allow it to sell its cars, like the Tesla S
lation (House Bill 1653 and Senate Bill 639) that would
pictured here, directly to Texans at a dozen stores in
the state.
have allowed Tesla to operate 12 stores in Texas. In pursuit
of this goal, Tesla spent more than $1 million dollars on
almost two dozen lobbyists, including top-tier hired guns
such as Allen Blakemore, Neal “Buddy” Jones, Demetrius
McDaniel, and Mike Toomey (see Table 6.2).
Opposing Tesla’s efforts, however, was one of the most
powerful interest groups in Texas, the Texas Automobile
Dealers Association (TADA). The TADA has its own inhouse lobbyists who were in turn aided by several hired
guns this past session. However, the most important lobbyists working on behalf of the TADA goal of killing the
Tesla-sponsored legislation were its 1,257 dealerships spread
across 284 Texas communities, as is visually displayed in
Image 6.6. This image, taken from the TADA website (it
also serves as the TADA Twitter background), underscores
a point the TADA tirelessly makes to every state legislator:
★ CTQ Tesla CEO Elon Musk calls the current
that their members are present in every Texas Senate disTexas rules governing auto sales, which
trict and almost every Texas House district. The TADA
require auto manufacturers to sell their
never ceases to remind legislators that TADA dealers are
cars through dealers instead of directly
active and valued members of their respective communities,
to consumers, as extremely un-Texan. Do
you agree or disagree with him?
providing vital jobs, sponsoring charity events, supporting
Little League teams, and providing a host of other benefits
that would all be threatened if automobile manufacturers
were allowed to sell directly to the public as Tesla wishes to do. Although most dealers are not all
that worried about losing sales to Tesla, they are very worried that the passage of the legislation
Tesla is seeking would open the door to adoption of a similar model by other auto manufacturers
such as Ford, General Motors, or Toyota—a move which would be devastating for their business.
IMAGE 6.6 Texas auto dealerships are spread across Texas in cities both large and small, with the
dealers themselves normally very active and influential members of their communities.
★ CTQ
Why are automobile dealers considered to be one of the most formidable interest
groups in Texas?
Darren Brode/Shutterstock.com
The Balance of Political Power
154
6 Interest Groups
In the end, the TADA’s dual effort lobbying strategy was successful. Its in-house and hired
gun lobbyists matched efforts with Tesla’s Austin hired guns (and corporate in-house lobbyists)
while the state’s 1,237 dealers directly pressured the specific representative and senator in whose
district their dealership was located as well as, in many cases, senators and representatives from
nearby districts. The result was that HB 1653 never even made it to a committee vote in the
House and SB 639 never made it to a committee vote in the Senate. Elon Musk may be a billionaire ranked by Forbes as the 37th richest person in the United States and the 38th most powerful person in the world, but he was no match for the Texas Automobile Dealers Association.
Interest Group Alliances and the Dynamics of Power
On issues that are narrow in scope, a single group may find itself unopposed. In the legislature, the interest group must persuade only a few key people, such as legislative committee
chairs and presiding officers, to win a floor vote. Administrative agency decisions are even
more likely to be controlled by a few interest groups because their decisions usually have
a concentrated impact on a single occupation or business sector. For example, real estate
brokers are very directly affected by the Real Estate Board’s licensing requirements and are
extremely active in trying to influence board decisions; the public is affected by the standards
the board sets, but few are interested enough to become involved in the process.
iron triangles
Long-standing alliances among interest
groups, legislators,
and bureaucrats held
together by mutual
self-interest that act as
subsystems in the legislative and administrative decision-making
process.
issue networks
Dynamic alliances
among a wide range
of individuals and
groups activated by
broad public policy
questions.
Iron Triangles On such narrow issues, interest groups, legislators, and bureaucrats can
develop such a long-standing relationship held together by mutual self-interest that they act as a
subsystem in the legislative and administrative decision-making process. Called iron triangles,
these alliances operate largely outside public view because they dominate a narrow range of
routine decisions that are of marginal interest to the general public but are of critical importance
to the interest groups and bureaucrats involved. The clientele group uses its resources, size, lobbying skills, and access to state officials to determine policy outcomes.
For example, oil and gas interests have formed a close association with the Texas Railroad
Commission, whose members their campaign contributions help elect. The agriculture industry forms a similar symbiotic relationship with the commissioner of the Texas Department of
Agriculture as well as the members of the house and senate agriculture committees. Highway
contractors form an alliance with the Texas Department of Transportation and interested legislators; privately owned utility companies work closely with the Public Utilities Commission. We
will illustrate these alliances more extensively in Chapter 8 as we discuss the state’s bureaucracy.
Issue Networks Iron triangles may dominate policies of a narrow scope, but broader
public policy questions like taxes, education, health care, environmental protection, and abortion have the potential to activate wider-ranging coalitions. Alliances among interest groups,
career bureaucrats, academics, think tanks, political bloggers, social media commentators,
traditional media editors, neighborhood leaders, radio talk show hosts, and other community
activists may form issue networks. These broad alliances are dynamic—different activists
and interest groups organize around different public issues.
Political Movements Issue networks have the potential to blossom into a larger
political movement
A mass alliance of likeminded groups and
individuals seeking
broad changes in the
direction of government policies.
political movement, a mass alliance of like-minded groups and individuals seeking broad
changes in the direction of government policies. When the web of opinion leaders in issue
networks taps into a large set of issues important to masses of people, they may develop a
large following with a fairly stable membership. One example is the tea party, which is not a
political party at all, but a very successful political movement.
Beginning among a relatively small network of activists opposing the federal bailouts of the
financial industry, the tea party movement gained strength with the passage of the American
Sizing Up Interest Groups and Their Influence
Recovery and Reinvestment Act of 2009 (popularly referred to as “The Stimulus”) and finally
evolved into a full-fledged antigovernment movement by the time the Affordable Care Act of
2010 (popularly referred to as Obamacare) was passed. A small alliance of interested groups
had transformed into a mass national political movement. In Texas, the movement’s support
helped lead to a strong Republican showing in the last four statewide elections, resulting in
overwhelming Republican majorities in the Texas Legislature and the adoption of many policies popular with tea party groups. See the Politics in Practice feature in Chapter 5 for a brief
history of the founding and development of Texas’s most influential local tea party group (the
NE Tarrant Tea Party), written by its founding president, Julie McCarty.
Sizing Up Interest Groups and Their Influence
LO 6.4 Evaluate the role of interest groups in Texas politics and policy
formulation.
Interest groups are formed by people who are exercising their fundamental constitutional rights
in a free society. Both the national and Texas constitutions protect freedom of expression and
freedom of association, and they specifically guarantee citizens the right to assemble to petition
their government “for redress of grievances.” The Texas Constitution (Article 1, Section 27) says
that “citizens shall have the right . . . to . . . apply to those invested with the powers of government
for redress of grievances or other purposes, by petition, address or remonstrance.”
The First Amendment to the U.S. Constitution says, “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition government for redress of grievances.” These constitutional provisions guarantee citizens the right to join together in political parties and interest groups. The rights to form political organizations, along with the right to vote, are essential to the very existence of a democracy.
The Positive Role of Interest Groups
Supporters believe that interest groups provide an essential linkage between members and
public officials that makes it possible for the political system to function in a free society.
They also believe that our pluralistic society, our governing structures, and our open society
protect us from domination by a single narrow elite.
Representation and Mobilization Interest groups provide members a vehicle
to present their values and views in ways that elections cannot. Texas elections are held every
two years, but many interest groups operate continuously and offer their members the opportunity to influence day-to-day decision making. At best, elections offer voters the chance to
set the general direction of government as they choose one candidate or party over the other,
while interest groups develop specialized tactics to give members the chance to affect the
details of policy making. Elections are held in geographic districts and statewide, but interest
groups represent people according to their specialized occupational, cultural, and professional
groupings, allowing them to articulate their members’ unique perspectives on public policies.
Democracy calls for politically attentive and active citizens, but many voters are minimally
informed, and they cast their ballots based on broad impressions created during political campaigns. Interest groups draw the most interested and informed citizens into the political process,
educate their members about issues, and mobilize them to participate in ways that advance their
own interests. Interest groups report on the activities of government officials and sometimes
keep vote tallies to report to their members on how legislators voted on key issues.
Interest groups inform and educate public officials; they provide policy makers with
valuable information both as they lobby individual government officials and as they testify
before legislative committees. Because state law makes it a crime to knowingly share false
155
156
6 Interest Groups
information with state lawmakers, most special interest groups are careful to provide truthful,
albeit often one-sided, information. Decision makers need to know how a proposed policy
will affect various segments of society and how the affected groups feel about it. Interest
groups enthusiastically provide this information to public officials free of cost to taxpayers.
pluralist theory
The view that, in a free
society, public policy
should be made by a
multitude of competing interest groups,
ensuring that policies
will not benefit a single
elite at the expense of
the many.
The Benefits of Pluralism Those who subscribe to the pluralist theory take the
view that, in a free society, public policy should be made by a multitude of competing interest
groups, assuring that policies will not benefit a single elite at the expense of the many. Agricultural, educational, energy, environmental, ethnic/racial, medical, and religious interest
groups are just some of the organized interests in Texas, and all compete with one another
for the attention and favor of decision makers. Matters involving large amounts of money or
important changes in existing policy invite crowds. In such situations, for anything to happen, some compromise among competing interests must occur, resulting in a mix of values
incorporated into the policy decision.
Interest groups’ defenders argue that the structure of government is designed to make it
hard for any group to dominate the state. The structure of government is characterized by:
•
•
•
•
•
The separation of powers
Checks and balances
Elected officials responsible to different constituencies at the ballot box at different times
Appointed officials with fixed terms
Career bureaucrats
These structures make the political system difficult for any one interest to capture. The
house and senate and the governor must agree to create law. The implementation of law is
placed in the hands of elected and appointed executive officers and the unelected bureaucrats
below them.
The media, especially in the digital age, give citizens access to an unprecedented amount
of information and offer a political tool for new and underrepresented voices that otherwise
lack financial and other resources to have a significant impact on policy making. Furthermore, interest groups are limited because they operate in an environment where the general
public is critical, if not cynical, of the political process.
Media exposure, public opinion, and the competing power of rival interest groups can
also have their effect on state policies, especially on policies of sweeping public significance.
More far-reaching public policy decisions involve more participants, and the general public
is more likely to take an interest. Public officials become quite sensitive to public opinion
when voters, especially primary voters, take an active interest in policy decisions—they must
get reelected, after all. No amount of interest group influence or campaign contributions
can cause public officials to sacrifice their political futures to one group’s special needs. The
scope of a public policy determines who will control the decision-making process and shape
the dynamics of power.
Criticisms and Reforms
Critics are not so optimistic about the role of interest groups in the Texas political system. They
believe that interest groups are very selective in mobilizing and informing citizens and that the
resources of political influence are concentrated in the hands of a very few. They believe that narrow interests are able to commandeer the machinery of government for their own self-interest,
and in the process they employ tactics that taint the integrity of the political system itself.
Elitism and the Culture of Nonparticipation Many Texans come from
a traditionalistic political culture that discourages political participation and defers to the
power of governing elites. Many Texans are not members of any interest groups at all, and
Sizing Up Interest Groups and Their Influence
many of those who have joined groups are passive, inattentive members, who leave the leadership role to a few activists.
Wealth, political contacts, access to information, and well-managed lobby operations are
controlled by a few powerful interest groups that often use these resources to dominate the
political process. For example, Texas has no patients’ rights association that has political
power comparable to that of the Texas Medical Association; organized labor’s power in Texas
is modest compared to that of employers’ organizations like the Texas Association of Business. Consumer organizations do not rival the influence of the numerous organizations of
manufacturers and retailers in the state.
Some critics believe an elitist theory of interest groups best describes Texas politics; they
take the view that that the state is ruled by a small number of participants who exercise
power to further their own self-interest. They contend that insurance companies, oil and gas
companies, and certain utilities usually have their way with the state because they are able to
pour enormous resources into campaign contributions or lobbying. They believe the average
citizen cannot compete; highly organized and active groups can threaten the well-being of
the unorganized majority.
Exploitation of Weak State Institutions Skeptical of government, Texans
have tried to limit and divide the power of state institutions. As a result, interest groups have
been able to capitalize on numerous structural weaknesses, and they have been able to take
advantage of numerous points of access to assert their influence.
For example, the state legislature meets in regular session only once every other year.
Legislators cannot keep up with what is happening in state government while they are not
in session. They come to Austin in January of odd-numbered years and depend on full-time
professional lobbyists to fill them in. Texas legislators have limited staffs or other sources of
independent information, and they must often go to lobbyists for the facts. Interest groups
are often the behind-the-scenes source of many bills legislators introduce.
Executive agencies often lack independent data sources and, in effect, outsource a great
deal of information gathering to the interests they regulate. The Texas Department of Insurance depends on the insurance industry to provide claims information necessary to write
regulations and set rates. The Public Utilities Commission, the Texas Railroad Commission,
the Texas Commission on Environmental Quality, and many other agencies rely heavily on
data reported by the industries they regulate.
Reformers advocate strengthening legislative and executive institutions by providing them
adequate resources and professional full-time staffs. Ideally, professional staffs should be
competent, well-paid state employees hired based on merit and having sufficient job security
to protect them against political interference. Reformers believe that only such professional
staffs can provide decision makers with enough balanced and objective information to enable
them to make policy in the public interest.
Besides limited staffing, low pay is also an institutional weakness that can be exploited.
Paid below the poverty level, legislators must depend on outside sources of income to earn a
living, making them vulnerable to the temptations of special interest groups. Many lawmakers are attorneys who, as sitting legislators, have been known to represent special interests
before state agencies and courts. Many work for clients who have interests in pending legislation, and no law requires legislators to recuse themselves even when they stand to benefit
personally from legislation under consideration.
State representative Gary Elkins—himself the owner of a chain of payday loan stores—
has taken to the floor to make a personal plea against saddling his payday loan industry
with consumer protection legislation. State representative Carol Alvarado and state senator
Royce West have been paid for legal work on behalf of independent school districts that had
157
elitist theory
The view that the state
is ruled by a small
number of participants
who exercise power
to further their own
self-interest.
158
6 Interest Groups
interests before the legislature. Former state senator John Carona, the CEO of one of the largest homeowners association management company in the country (Accenture), authored a
major bill affecting homeowners associations (HOAs), benefiting HOAs and HOA management companies to the detriment of individual HOA residents. And former state representative John Otto served as vice-chair of the house committee that was responsible for tax-related
legislation while simultaneously being employed by one of the state’s largest accounting firms
(Ryan & Co.). Reformers argue for stricter ethics laws to prohibit apparent conflicts of interest such as these.
AP Images/Eric Gay
The Revolving Door The public interest may be compromised by the interchange
of employees between government agencies and the private businesses with which they have
dealings—a peculiar practice referred to as the revolving door. Although 33 other states
revolving door
The interchange of
have some ban on legislators becoming lobbyists immediately after leaving office, Texas has
employees between
no such restrictions. The federal government and a number of states also require “cooling
government agencies
off” periods before bureaucrats leaving the executive branch can become lobbyists, but Texas
and the private busidoes not.
nesses with which they
have dealings.
In Texas, as ambitious legislators and executive officials retire and move on to other
occupations, many become lobbyists for the very interest groups they once regulated. To be
certain, few people would be better suited to serve as lobbyists than ex-lawmakers. Former
legislators are intricately familiar with the legislative
process, many are policy experts, and they often have
IMAGE 6.7 Jim Pitts, the former chair of the
powerful House Appropriations Committee, is now a
friendships with lawmakers who are still in office.
lobbyist.
Interest groups also seek to hire retiring state agency
officials as lobbyists because of their familiarity with
the policy-making process, their policy expertise, and
their connections inside state government.
Former state representative Jim Pitts of Waxahachie served in the house from 1993 to 2015, rising
to become the ultra-influential chair of the House
Appropriations Committee during his final six years
in office. In 2014 he chose not to seek reelection, and
in January 2015 he left his $7,200-a-year post as a
state legislator for the much more lucrative position
of lobbyist. In 2015 alone, Pitt’s lobbying contracts
combined amounted to approximately $250,000, with
major clients including the Texas Hospital Association
and Beacon Health Solutions. He also represented
the Texas Entertainment Association, the trade association for the state’s strip clubs which is lobbying for
repeal of a $5 admission fee imposed by the legislature
★ SRQ
Explain the potential conflict of interest
in 2007, popularly referred to as the “pole tax.”
when retired legislators lobby their former colleagues.
The revolving door may create opportunities for
retiring public officials, but it also creates the potential
for conflict of interest, a situation in which public
conflict of interest
officers stand to benefit personally from their official decisions. Lawmakers and bureaucrats,
A situation in which
planning their next career move, might be tempted to make decisions that will benefit propublic officers stand to
spective employers. For example, former state representative Jamie Capelo co-authored a bill
benefit personally from
their official decisions.
that capped medical liability lawsuits; shortly after leaving office, he became a lobbyist for the
interest groups that benefited financially from his bill. It is fairly common for interest groups
to hire public officials as lobbyists after they have made policy decisions in their favor.
Sizing Up Interest Groups and Their Influence
Critics wonder how many unscrupulous officials are
using public service as a training school or stepping-stone
to a more lucrative career as a lobbyist. “People rightfully
wonder when did they stop being a lawmaker and when did
they start to become a special interest lobbyist.”3
159
Did You Know? In 2015, former state representative, and current political campaign consultant,
Todd Smith had lobbying contracts worth approximately $2.5 million dollars.
Suspect Interest Group Practices Do cam-
paign contributions buy sponsorship of bills and special
favors? The public and the press think they do. Public officials and lobbyists say they do not.
Anecdotal evidence that contributions buy public policy is mixed, but enough cases have been
identified to leave the casual observer with the perception that conflicts of interest do arise.
A practice that seems to be more than merely coincidental is the biennial ritual in Austin
after each election when special interest groups hold fundraising events to honor selected
legislators. State law forbids giving and accepting campaign contributions 30 days before the
start of a legislative session and throughout the session, causing a rush of fundraising activity
in the month after election day. Because these lobbyist-sponsored fund raising parties occur
after the election, not before, they are not simply an effort to help elect candidates who support their group’s cause—they have already been elected. The reason, as one lobbyist said, is
to “pay the price of admission” or to obtain good access to legislators. These so-called latetrain contributions are commonly given to the winning candidates in the executive branch
as well. Losers are rarely the beneficiaries of such largess.
The Regulation of Lobbying
Fearing the influence of powerful organizations behind the scenes, reformers supported the
creation of the Texas Ethics Commission with the power to enforce lobby and campaign
finance reporting laws. Reformers believed that reporting requirements respect basic rights
to freedom of expression while requiring that lobbyists’ efforts be made public. The rationale
for these laws is that the public should at least know who backs which policies and who stands
to gain from them.
late-train
contributions
Campaign funds given
to the winning candidate after the election
up to 30 days before
the legislature comes
into session. Such contributions are designed
to curry favor with winning candidates.
Lobbyist Reports Lobbyists for private interest groups, with few exceptions, must file
reports with the Texas Ethics Commission if they are paid $1,000 salary per calendar year
or if they spend more than $500 per quarter to communicate directly with any members of
the legislative or executive branch to influence legislation or administrative action. Lobbyists
must report:
•
•
•
•
•
Their actual clients
The general areas of their policy concerns
The range within which their compensation falls
Their expenditures for advertisements, mass mailings, and other communications
designed to support or oppose legislation or administrative actions
Their expenditures on members of the state legislature or state employees in excess of
$114 (60% of the legislative per diem) a day on food, drink, transportation, or lodging
and $50 on gifts, which must be reported by name, date,
place, and purpose
Campaign contributions are reported as we described in
Chapter 4, but they are not classified as lobbying expenses.
Evaluating Reporting Requirements Critics
of the lobby reporting law maintain that some provisions
Did You Know?
A trick Texas lobbyists use to
avoid reporting who they took to dinner, a concert, or
a sporting event is to split the bill with other lobbyists
to keep it below the reporting threshold.
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6 Interest Groups
How Does Texas Compare?
Government Accountability and Transparency
Among the States
Every year the Pulitzer Prize–winning Center for Public Integrity carries out its State Integrity Investigation,
in which it assesses the strengths and weaknesses of
institutional safeguards against corruption across the
50 states. The result is a scorecard in which every state
is given a letter grade (A to F) and ranked (from a high
of 1 to a low of 50). The Center for Public Integrity is a
tough grader, and the highest-scoring state, Alaska, only
received an overall grade of C. The table provides Texas’s
overall grade (a D–), as well as its grade and rank in each
of the 13 separate categories evaluated. Similar information is provided for the country’s three other mega-states:
California, New York, and Florida.
Texas ranks near the bottom in the nation in several categories, including Public Access to Information (48th), Electoral Oversight (45th), and Lobbying
Disclosure (45th). In contrast, Texas institutions do a
comparatively good job of providing for transparency
and accountability and protecting against corruption in
the areas of State Budget Processes (4th), Internal Auditing (4th), Procurement (9th), and State Pension Fund
Management (9th).
Public Integrity Report Categories, Grades (and National Rankings) for 2015
Category
Texas
California
New York
Florida
Overall Grade
D– (39)
C– (2)
D– (31)
D– (30)
Public Access to Information
F (48)
F (28)
F (11)
F (17)
Political Financing
F (41)
C– (10)
D– (24)
F (28)
Electoral Oversight
F (45)
C– (17)
F (49)
F (46)
Executive Accountability
F (44)
C– (5)
D+ (15)
D+ (16)
Legislative Accountability
F (36)
C– (11)
D– (26)
C+ (2)
Judicial Accountability
F (41)
F (20)
F (48)
F (38)
State Budget Processes
A (4)
A (6)
F (50)
F (48)
State Civil Service Management
F (41)
D+ (10)
C– (1)
F (50)
Procurement
C+ (9)
C– (21)
F (48)
D+ (25)
Internal Auditing
B+ (4)
B– (25)
B+ (1)
B (10)
Lobbying Disclosure
F (45)
B+ (2)
C+ (5)
F (38)
Ethics Enforcement Agencies
D– (19)
C– (4)
F (38)
D– (17)
State Pension Fund Management
C+ (9)
A (2)
C+ (10)
D (22)
The Center for Public Integrity.
FOR DEBATE
★ SRQ
To enhance accountability and transparency, in which areas would Texas
benefit from adopting the institutional models employed in California,
New York, and/or Florida, and in
which areas would some or all of those
states benefit from becoming more
like Texas?
Sizing Up Interest Groups and Their Influence
leave the public ill-informed because lobbyists’ compensation and expenditures are reported
in broad categories rather than in specific amounts. In 2015, according to official lobby
reports, AT&T paid 101 lobbyists between $4 million and $8 million, but the public is left
to guess the exact amount.
Reporting which policy a lobbyist seeks to influence similarly requires only checking the
appropriate box on a form. For example, AT&T lobbyists may report contacting public officials about “communications.” Reformers charge that these requirements provide very little
information that the public can use. To be meaningful, lobby reports would need to list the
specific bill numbers on which lobbyists worked or the agency rule-making hearings at which
they testified.
Although critics fault the Texas Ethics Commission for not vigorously enforcing reporting
requirements except in high-profile cases, it serves as a comprehensive repository of campaign financial statements, lists of registered lobbyists, campaign contributions, and campaign expenditures. One critic admitted the Texas Ethics Commission is “a pretty darn good
library”, noting however that it was at the same time “a pretty poor cop.”4
The members of the Texas Legislature are provided a list of registered lobbyists and their
clients by February 1 of each legislative session, and the public may obtain copies of registration and activity reports from the Texas Ethics Commission website. By tabulating and
publicizing these reports, organizations like Texans for Public Justice, the National Institute
on Money in State Politics, and the Center for Public Integrity promote transparency in government and help keep the public informed about interest group influence in Texas.
Ethics and Lobbying Reform Efforts in 2015
In his inaugural State of the State address, Governor Greg Abbott declared ethics reform
to be one of five high-priority emergency items (see Chapter 8) along with border security,
pre-K education, higher education research, and transportation. Abbott achieved the passage
of legislation addressing four of these five emergency items, but was largely unsuccessful
in obtaining the passage of legislation that would have tightened up the state’s notoriously
loose rules governing the behavior of lobbyists and public officials. Bills that would have
prevented former legislators from lobbying (as Jim Pitts did) for two years after leaving office
and would have blocked legislators from profiting from government-related bond work (like
the $319 million dollar Tarrant Regional Water District bond sale former state senator Wendy
Davis worked on while still in office) went nowhere.
Amidst the failure of these more powerful reforms, the most consequential reforms to
make it out of the house and senate were two bills (HB 3511 and HB 3736) that would have
increased transparency and reduced conflicts of interest, particularly related to state boards
and commissions and elected state officials. However, at the very end of the session, state
senator Joan Huffman slipped in amendments that would have actually resulted in a reduction in transparency by allowing elected officials to not disclose their spouse’s income and
assets as part of the financial disclosure process required of Texas elected officials. This lastminute maneuver brought added scrutiny to Huffman, whose husband has financial interests in around two dozen bars, night clubs, and other businesses, and raised concerns that
Huffman’s amendment was designed to shield her true assets and financial interests from the
public. At the request of the bills’ author (state representative Sarah Davis) and half of the
commissioners serving on the Texas Ethics Commission, and with widespread legislative support, Governor Abbott vetoed both bills.
In the end, the only noteworthy ethics reform to become law in 2015 was state representative Giovanni Capriglione’s HB 1295, which requires municipalities, counties, school
districts, and special purpose districts to list all people who have a financial interest in any
contract with the entity that is over $1 million dollars in value or that involves a vote by the
161
162
6
Interest Groups
entity’s governing board. Even this modest reform has been the subject of substantial pushback from lobbyists and vendors who profit from contracts with these entities.
Applying What You Have Learned about
Interest Groups
LO 6.5 Apply what you have learned about interest groups.
You have learned that among the many self-interested groups influencing Texas public
policy, business and economic groups such as the energy industry have considerable influence in Texas. You also learned that less powerful advocacy groups deploy the same sorts of
tools attempting to counterbalance the dominance of these industries. We persuaded Luke
Metzger, a lobbyist for a leading Texas environmental group, to explain to you the tactics
he deploys and the practical obstacles he faces in fighting to protect the Texas environment.
Luke Metzger is the founding director of Environment Texas, a statewide advocacy organization bringing people together for a cleaner, greener, healthier future. He has played a
key role in dozens of successful environmental campaigns throughout the state. He regularly
testifies before the Texas Legislature and appears frequently in the state and national media.
Capitol Inside has named him as one of the top 10 “Lobbyists for Causes.”
After reading Metzger’s essay, we will ask you to evaluate the importance of advocacy
groups in challenging some of the most powerful interest groups in the Texas political system
and to explore how their tactics affect Texas public policy in practice.
★
POLITICS IN PR ACTICE
The Practice of Environmental Lobbying
by Luke Metzger
Director of Environment Texas
There’s something special about Texas—something worth protecting and preserving for
future generations. Whether it’s swimming at Barton Springs on a hot day, paddling down
the Trinity River or hiking through Big Bend National Park, Texas’ natural wonders enrich
our lives in countless ways.
Yet the places we love and the environmental values so many of us share are too often threatened by powerful industries, shortsighted politicians and more. According to our research,
Texas ranks second in the nation for toxic discharges to our water and first in exceeding
lead standards for safe drinking water. And Texas has the highest rates of “High Priority
Violators” of clean air laws in the nation.
These problems have solutions, but despite strong public support for action, all too often
powerful interests stand in the way, spending millions in campaign contributions and lobbyists to maintain the status quo.
Take the example of “fracking” and the Texas Legislature. The combination of two
technologies—hydraulic fracturing and horizontal drilling—has enabled the oil and gas
Applying What You Have Learned about Interest Groups
industry to engage in an effort to unlock oil and gas in underground rock formations
across the United States. “Fracking,” however, has also led to tremendous environmental
harm and put the health and safety of communities across the country at risk. In response,
over 300 Texas cities have adopted ordinances to protect their citizens from harm, adopting measures to keep drilling out of neighborhoods and away from schools. In November
2014, voters in Denton approved a measure on the ballot to keep drilling out of their city
altogether.
Texans from across the political spectrum believe local governments should have the
right to adopt these kinds of ordinances. For example, a 2015 poll by the University of
Texas and the Texas Tribune found that Texas voters who strongly identify as Republicans support local control of “fracking” by a margin of 50 percent to 35 percent. But with
the Denton vote, the oil and gas industry sensed an opportunity to roll back municipal
protections, and they didn’t stop with outright bans. The Texas Oil and Gas Association
called even sensible setbacks from homes “extreme” and wrote HB 40—legislation to
preempt local control.
Having donated $5.5 million to the campaigns of legislators in the 2014 elections, and spent
even more on lobbyists, oil and gas interests prevailed over public will and HB 40 became law
in the 2015 legislative session. Denton was forced to repeal its ban, and other cities’ setback
requirements are being challenged by the oil and gas industry.
Unfortunately, this is all too often how Texas politics works. Industries wealthy enough to
buy elections and wine and dine lawmakers routinely push for and win agendas at odds with
what most Texans believe. But with hard work and strategic campaigns, organized people can
beat this organized money.
Defending our environment requires independent research, tough-minded advocacy and
spirited grassroots action. That’s the idea behind Environment Texas. Together with thousands of supporters from all walks of life, we take the kind of action that wins tangible results
for our environment.
For the last ten years, Environment Texas has played a leading role in cleaning up air and
water pollution in the Lone Star State. Our lawsuits against Shell and Chevron Phillips
reduced air pollution in Houston by one million pounds per year. We helped restore Clean
Water Act protections to 143,000 miles of Texas streams. We won voter approval of $50 million to purchase and protect land in the environmentally sensitive Barton Springs watershed.
And we helped win a major investment in water conservation by the state water board to help
combat a historic drought.
We lose as often as we win, but we are in this fight for the long haul. With the people of Texas
standing and working with us, we will ultimately prevail and win the kind of change our
environment desperately needs.
1. What are the challenges the author sees facing the Texas environment?
2. Describe the interest group tactics the author uses to try to change the state’s environmental policies. How does the author hope to compete in a practical way against some of the
most powerful interest groups in Texas?
163
164
6
Interest Groups
★ Chapter Summary
LO 6.1 Define interest groups and identify their major
types. Interest groups are organizations of private citizens exercising their constitutional right to organize in an attempt to influence public policy. Economic interest groups seek to influence
public policies that affect their pocketbooks, while noneconomic
interest groups strive to realize their religious, political, or personal values. Some groups, like civil rights groups, work for the
ideal of equality and financial self-interest as well.
Iron triangles dominate narrow public policy decisions, but
once in a while public policy battles over broad issues, such as
taxation, abortion, education, or the environment, involve broader
interest group alliances as more interest groups and individuals
become active on a wider political battlefield.
LO 6.4 Evaluate the role of interest groups in Texas politics and policy formulation. The constitutions of the United
maximize their potential influence on each major type of policy
maker in Texas government. Their major tactics include lobbying,
making campaign contributions, organizing public relations campaigns, and filing suit in the courts.
Interest groups have refined lobbying to an art form as they try
to sway members of the legislative and executive branches to their
policy positions. Like salespeople for their groups’ ideas, lobbyists socialize with decision makers to build personal relationships,
making them receptive to emotional appeals, ideological appeals,
and persuasive information. Lobbyists conduct research and draft
proposed bills for the legislative branch even as they monitor and
shape the rule-making process in the executive branch.
Interest groups have also developed electioneering and public relations into a fine art. Campaign contributions give lobbyists
access to elected officeholders, and organizing public demonstrations, letter-writing campaigns, and advertising campaigns can
help create a political environment that makes public officials
receptive to interest groups’ appeals.
States and Texas promote political expression and the right to
organize to petition public officials. These rights recognize that
representatives can represent their constituents’ wishes only
when citizens are able to communicate their policy positions
effectively.
Interest groups play a positive role in the political system
as they mobilize citizens and present their policy viewpoints to
public officials. In a diverse, pluralistic state like Texas, no single
group is able to dominate completely in a state that has divided
and dispersed its institutional powers.
Critics charge that too few Texans have joined any interest
groups, and because effective use of interest group tools requires
money, the most powerful interest groups are those that represent
narrow elites. Interest groups create conflicts of interest by opening the revolving door, tempting officials with campaign contributions, and exploiting weak state institutions.
Public interest groups and the media publicize reports on
interest group activity, but lobby reports to the Texas Ethics Commission do not reveal the specific policies on which lobbyists
work or the implied understandings that come with campaign
contributions.
LO 6.3 Analyze the political balance of power among
interest groups in Texas. Business interest groups, such as the
LO 6.5 Apply what you have learned about interest
groups. You heard from a leader of one the state’s most influential
Texas Association of Business, the energy and natural resources
industries, utilities, and health-related businesses, are dominant
in Texas. Socially conservative groups closely aligned with state
Republicans have considerable influence as well.
environmental groups about Environment Texas’s policy goals
and lobbying strategies, and evaluated the role of interest groups
in the Texas political system.
LO 6.2 Describe how interest groups influence public
policies in Texas. Interest groups adjust their strategies to
Key Terms
access, p. 149
astroturf lobbying, p. 150
clientele groups, p. 146
conflict of interest, p. 158
co-optation, p. 146
discretion, p. 144
elitist theory, p. 157
implementation, p. 144
interest group, p. 139
iron triangles, p. 154
issue networks, p. 154
late-train contributions,
p. 159
lobbying, p. 142
pluralist theory, p. 156
political movement, p. 154
revolving door, p. 158
umbrella organization,
p. 151
Review Questions
LO 6.1 Define interest groups and identify their major
types.
• What are interest groups? What do they do?
• What are the major types of interest groups? Identify
an interest group in each subcategory.
Think Critically and Get Active!
LO 6.2 Describe how interest groups influence public
policies in Texas.
• How do interest groups use different approaches to
165
• How does the scope of a proposed policy affect the
number of interests that attempt to bring their influence to bear in the decision-making process?
influence each of the three branches of government?
• Do campaign contributions affect public policy making in Texas? How?
• What is lobbying? What does a lobbyist do? What
techniques do lobbyists use to influence state
officials?
LO 6.3 Analyze the political balance of power among
interest groups in Texas.
• Which interests are the most powerful in Texas? Why?
LO 6.4 Evaluate the role of interest groups in Texas
politics and policy formulation.
• How is interest group formation a constitutional
right? What positive services do interest groups perform for the political system?
• What are the criticisms of interest groups? Define
conflicts of interest. Describe regulations that would
minimize them.
• Describe the differences between elitist and pluralist theories. Which theory best describes Texas politics? Why?
Think Critically and Get Active!
Find out who is lobbying state government. Go to
the Texas Ethics Commission’s website at www.ethics.
state.tx.us to discover which people, corporations, labor
unions, and nonprofit organizations are lobbying Texas
state government. Use this site to sample interest group
reports about lobbying and campaign contributions.
Learn how to lobby at the Texas State Teachers Association website at www.tsta.org/issues-action. Click
on “Guide to Lobbying” under Take Action at the State
Level!
Follow some of the most active and influential interest groups in the Lone Star State on Twitter: Empower
Texans
(@EmpowerTexans),
Environment
Texas
(@EnvironmentTex), NARAL Pro-Choice Texas (@naraltx),
Public Citizen Texas (@PublicCitizenTX), Texans for Public Justice (@TxPublicJustice), Texas Association of Business
(@txbiz), Texas Association of Realtors (@TXRealtors),
Texas Automobile Dealers Association (@autodealerstx),
Texas Farm Bureau (@TexasFarmBureau), Texans for
Lawsuit Reform (@lawsuitreform), Texas League of Conservation Voters (@TLCV), Texas Medical Association
(@texmed), Texas Oil and Gas Association (@TXOGA),
Texas Right to Life (@TXRightToLife), and Texas State
Rifle Association (@TSRA_outreach).
★ CSQ
Identify the state or local interest group related to your career,
professional ambitions, or personal
interests. Also search for at least one
of each of the following types of organizations: a major corporation, a labor
union, a professional organization, a
trade organization, a nonprofit organization, and a public interest group.
From the groups’ websites, make a
list of the public policy issues each
is promoting, and write a paragraph
explaining why the groups take these
positions. Briefly describe the organizations’ dues, membership, type and
frequency of any publications, and
social media presence.
★ PRQ
How do you distinguish the “public
interest” from your own personal selfinterest? Do you identify a concept of
social justice beyond your own personal needs?
★ PRQ
Create a list of at least a half dozen
potential conflicts of interest involving public officials using the Texas
Tribune’s Ethics Explorer (A Guide
to the Financial Interests of Elected
Officials) at www.texastribune.org/
bidness/explore. Explain why each of
your examples represents an ethical
conflict.
7
The Legislature
This chapter will shed light on the inner workings at the Capitol and you will see who our legislators are and how they
operate to pass the state’s laws.
Jo Ann Snover/Shutterstock
Learning Objectives
LO 7.1 Describe the limits on the Texas Legislature and evaluate the concept of the “citizen
legislature.”
LO 7.2 Analyze the selection of Texas legislators, their qualifications, and the impact of campaign
financing and redistricting on elections.
LO 7.3 Analyze the powers of the legislature and its presiding officers.
LO 7.4 Analyze legislative processes, the committee structure, and how a bill becomes a law.
LO 7.5 Apply what you have learned about the Texas Legislature.
The Limited Legislature
167
T
he legislative branch is responsible for making law. It is through law that the state makes
public policy and basically determines what the state agencies will do. The legislative
function is to determine what is a crime, to establish the basis for a civil suit, to establish what
services the state will provide, and to provide the funding to carry out the state’s priorities.
In Texas, the legislature is bicameral—it consists of two houses, the 31-member Texas
Senate and the 150-member Texas House of Representatives. On most matters, the two houses
share equal powers and both of them must agree on a proposed bill for it to become law. The
Senate does have the special power to confirm or approve the governor’s appointments of state
officers. By establishing a bicameral legislature, framers of the Texas Constitution followed
the pattern set for the national Congress and used in every state other than Nebraska, which
has a unicameral, or one-house, legislature.
The chief argument for the use of bicameral legislative bodies is that one house can serve
as a check on the other so that legislation will not be passed hastily without adequate reflection, and both chambers must consider every bill before it becomes a law. Bicameralism can
also slow the law-making process or can keep laws from passing through one chamber while
passing in the other.
Texas has a “citizen legislature,” with members who do not hold a full-time professionally paid position. The Texas Legislature is a highly centralized institution dominated by its
presiding officers—the lieutenant governor in the Texas Senate and the speaker in the Texas
House of Representatives—who use standing committees and a variety of other committees
to control the law-making process in the state.
The Limited Legislature
LO 7.1 Describe the limits on the Texas Legislature and evaluate the
concept of the “citizen legislature.”
The Texas Legislature has often been referred to as a “citizen legislature,” whose members
meet for only 140 days every other year and receive only a small income for the work they do.
It has been said that the Texas Legislature is “full-time only part of the time.” The limited sessions, heavy workloads, low salaries, and limited staffing keep the legislature in this “citizen”
status.
Legislative Terms and Sessions
Texas representatives are elected for two-year terms, but senators are elected for longer fouryear terms that are staggered or overlapping. That means that the entire House and half the
Senate (15 or 16 senators) are elected every two years. All senators are elected in the first election following redistricting (every 10 years). At the beginning of the post-redistricting session,
the senators draw lots to determine which senators will serve a two-year term. One-half of
the senators are up for reelection again in two years, whereas the other half will not be up for
reelection campaign for four years. All senators will then serve overlapping four-year terms
until the districts are again redrawn.
Texas legislators may serve as many terms as voters choose to reelect them. Unlike Texas,
some states have adopted term limits, which are legal restrictions on the number of times
that a politician can be reelected to a particular office or the number of years that a person
may hold that office. The adoption of term limits in some states reflects an increasing frustration with government, especially the legislative branch, which seems to be more responsive
to organized special interests than to the residents and businesses located within a legislator’s
home district.
Most supporters of term limits assume that electing new legislators could and should
disrupt long-established working relationships between legislators and interest groups.
term limits
Legally mandated
restrictions on the
number of times that
a politician can be
reelected to an office
or the number of years
that a person may hold
a particular office.
168
7 The Legislature
IMAGE 7.1 When you visit the Texas Senate, you will usually see an empty
amadeustx/Shutterstock.com
chamber because the Texas Legislature has short, infrequent sessions.
★ CTQ
What are the advantages and disadvantages of short sessions?
Unfortunately, it is not clear whether term limits increase or reduce the influence of interest
groups. Opponents of term limits argue that limiting legislators time in office may actually
be counterproductive because they result in higher turnover and the election of many inexperienced lawmakers who, lacking expertise of their own, become even more dependent on
lobbyists and career bureaucrats for advice, information, and expertise.
Short and infrequent sessions contribute to the “citizen” status of the legislature. The Texas
Legislature begins its session on the second Tuesday in January of odd-numbered years and meets
for a period of just 140 days. Forty-five states have annual
legislative sessions; Texas’s is the only legislature among the
Did You Know? In the hustle and bustle of
10 most populous states to meet on a biennial schedule, once
the short legislative session, on April Fools’ Day 1971,
every other year. The limited biennial sessions tend to work
the Texan House unanimously passed a congratulatory
against professional and deliberative legislative practice and
recognition of Albert De Salvo for his “noted activities
ultimately may work against the public interest. Texas legisand unconventional techniques involving population
lators cannot possibly acquaint themselves in only 140 days
control and applied psychology.” The House later
withdrew this recognition when it discovered that De
with the immense volume of proposed legislation presented to
Salvo was in fact the “Boston Strangler,” an infamous
them, which usually amounts to thousands of proposed bills
serial killer.
and resolutions. Because most of the legislative work must
be performed during the short regular session, time becomes
critical; many pieces of legislation are never considered.
When work cannot be accomplished or a bill favorable to the governor did not pass during
a regular session, a 30-day special session, which can be called only by the governor, may take
place after a regular session. Because special sessions interrupt the normal lives of the “citizen
legislators” and cost more than a million dollars every time one is called, they are not very
popular with either the legislators or the general public. The governor sets the agenda for the
The Limited Legislature
169
special session; however, legislators can and often do introduce new bills for consideration
during the short session. The legislature adjourns once it has voted on the items in the governor’s agenda or when it reaches the 30-day limit.
Governors, however, may call the legislature into as many special sessions as they wish,
and some have called several back-to-back sessions when the legislature has failed to pass their
agendas. When a 2013 special session failed to pass his proposed limits on abortions, former
governor Rick Perry called a second special session to begin the very next day.
Although the governor is empowered to call special sessions, the House and Senate can
call an “impeachment session” for the sole purpose of deciding the impeachment and removal
of state officers from their position. Texas has impeached and removed one governor from
office—Jim Ferguson. After impeachment in the House, the Senate may remove an official
by a two-thirds vote.
Legislative Salaries and Compensation
Legislators receive an annual salary of $7,200 plus $190 per diem, an amount paid for each
day a legislator is working, during both regular and special sessions and during the interim
when committees meet. They also have a travel allowance on a reimbursement basis when the
legislature is in session. The Texas Ethics Commission is constitutionally empowered to establish the per diem allowance, which is increased regularly, but voters must approve any salary
increase. Texas lawmakers are among the worst paid large-state legislators in the country and
have not received a salary increase since 1975; they have, however, found ways to offset their
living expenses through very lax rules governing how a legislator earns money while in office.
Legislators who are lawyers can accept retainer fees from a variety of clients, which may
include those who do business with state agencies or may have lawsuits against state agencies.
Lawyers and non-lawyers alike can receive consulting fees from business clients and can act
for their clients based on information that they obtain from lobbyists and other information
that they gain from their own specialized knowledge of pending legislation, thereby helping
their clients benefit from legislation being considered.
Some reformers believe that legislators’ pay should be increased to a professional-level
salary and their income from sources outside their government paycheck strictly limited. In
the current system, the potential for conflict between the public interest and the interests of
lawmakers’ private businesses or their employers can be construed to be unethical. Although
higher pay would not guarantee honest legislators, it would enable the conscientious ones
to perform their legislative duties without turning to sources of outside income that could
potentially compromise their ability to represent the constituents who elected them.
Legislative Staff
The legislature provides only minimal funds for hiring competent staff. Monthly staff allotments are $13,250 for House members and $38,000 for senators; they are also reimbursed for
other “reasonable and necessary” office expenses.2 Texas spends less than 0.3 percent of its
budget on legislative staff salaries, services, and other office accommodations for legislators.
Usually, senators and representatives maintain staff in Austin as well as in their home districts. These allotments must pay for staff, equipment, and supplies for both offices, as well as
rent and utilities for their home district office. House members generally have about three or
four staff people; in the Senate, the average staff size is slightly more than seven. Some senators have as many as 14 staff members, while others have as few as four.
Powerful special interests and administrative agencies have a distinct advantage when it
comes to staffing. The need for research data, advice, expertise, and other services obtained
from interest groups and administrative agencies makes legislators dependent on these groups
for information and advice.3
per diem
The amount paid each
day that a legislator
is working, both in
regular and special
sessions, and when
committees meet
during the interim
between sessions.
retainer fees
Fees charged by
lawyer-legislators for
services to clients,
including those who
have business with
state agencies or may
have lawsuits against
state agencies.
consulting fees
Fees charged by
legislators who may
contract with business
clients to consult on
matters pending in the
legislature, thereby
helping their clients to
benefit from legislation
being considered.
170
7 The Legislature
How Does Texas Compare?
Sessions Most states provide annual regular legislative
sessions, and 14 states place no limit on their length. Texas
is among only five states with biennial legislative sessions.
Unlike most legislatures, the Texas Legislature may not call
itself into a special session or determine its agenda. Low
salaries and limited sessions make it difficult for the Texas
Legislature to function as a professional institution and
may make members more dependent on interest groups
for income and research on public policy. Recent research
indicates that more professional legislatures—those with
higher salaries, longer sessions, and better staffs—are
significantly more responsive to public opinion and enact
policies that are more congruent with public preferences.1
Limits on Legislative Terms, Salaries, and Sessions
Terms Like 34 other states, Texas does not limit the
number of terms legislators may serve. Voters are left
to decide whether to retain experienced incumbents or
replace them with fresh legislators.
Salaries Figure 7.1 shows that the Texas Constitution
is much more restrictive than most states with respect to
legislative salaries and sessions. Although New Hampshire pays its legislators only $200, no other populous
state sets legislative pay as low as Texas. Most large states
pay their legislators in the salary range of middle-class
employees, and many allow legislators to set their own
salary by statute.
WA
OR
B&U
CA
U
NV
B
ND
B
MT
B
ID
U
WY
CO
AZ
U
IA
U
KS
OK
NM
VT
U H
N
NY
WI
U
SD
NE
UT
ME
MN
IL
U
MO
HI
TEXAS
B
PA
U
OHIO
U
WV
KY
IN
VA
MA
B
RI
CT U
NJ
U
DE
MD
NC
U
TN
AR
SC
MS
AK
U
MI
U
AL
GA
LA
FL
Full-time legislatures
Citizen legislatures
Mixed legislatures
U Unlimited sessions
B Biennial sessions
FIGURE 7.1 Full-Time and “Citizen” Legislature
Note that most large states have full-time legislatures with unlimited annual sessions and yearly salaries over $40,000. In
contrast, Texas is among the states that have a “citizen” legislature with limited, biennial sessions and salaries set below
$10,000. Many state legislatures have elements of both types.
★ SRQ
Explain the advantages of a professional full-time legislature like the ones used by most
other large populous states. Why do Texans prefer a part-time citizen legislature?
Source: Based on data from The Book of the States, 2011 (Lexington, KY: Council of State Governments, 2011), Tables 3.2 and 3.9.
FOR DEBATE
★ SRQ
Should Texas limit the number of terms
legislators serve? Or would term limits
also restrict legislators’ experience
and, therefore, make them more vulnerable to the influence of lobbyists?
★ SRQ
Should Texas consider increasing
legislators’ salaries and the length of
their sessions? Or would doing this
give legislators too much power?
Electing Legislators
To counteract the dominance of the special interests’ informational influence, both legislative houses have established nonpartisan institutions to provide information to legislators.
The House Research Organization provides bill analyses, floor reports, issue focus reports,
and interim news to legislators and the public.4 The Senate Research Center provides research
and bill analysis to the Texas Senate and the lieutenant governor’s office. The center’s staff
also attends meetings and conferences of other governmental entities and report to the senators on their content. This kind of help to the legislative staff reduces legislators’ dependence
on special interests and administrative agencies for information.
Electing Legislators
LO 7.2 Analyze the selection of Texas legislators, their qualifications, and
the impact of campaign financing and redistricting on elections.
Certain legal, or formal, qualifications, including age, citizenship, and residency status, must
be met before anyone can serve in the state legislature. However, the “informal” qualifications, including partisanship, socioeconomic status, gender, and especially access to campaign
funding, usually determine who will run for and be successfully elected to the legislature.
Qualifications
To be a Texas state senator, one must be a U.S. citizen, a qualified voter, and at least 26 years of
age and must have lived in the state for the previous five years and in the district for one year
prior to election. Qualifications for House membership are even more easily met. A candidate
must be a U.S. citizen, a qualified voter of the state, and at least 21 years of age and must have
lived in Texas for the two previous years and in the district for one year prior to being elected.
On the surface, becoming a senator or representative in the state would seem relatively
easy, but a successful candidate for the legislature must have certain qualities to be elected to
the state legislature. These qualities, which include party affiliation, demographic identity,
occupation, educational level, and economic status, can almost be considered “informal” or
unofficial requirements to win election to the legislature. Perhaps the most important quality
of a successful legislative candidate is the ability to raise money and to appeal to those who
are willing and able to contribute to campaigns.
Party Party affiliation in Texas often determines whether a candidate will win an election
or not. Until the late 1980s, the Democratic Party was the dominant party in Texas. Since
then, however, the resurgence of the Republican Party has made Texas a strongly Republican
state. By the end of 2004, Republicans had established dominance over all three branches of
state government and representation in the U.S. Congress, with two Republican U.S. senators and a Republican majority in the Texas delegation to the U.S. House of Representatives.
Campaign Funding A primary qualification for winning legislative office is access to
money. Many competent, motivated citizens who want to serve are excluded because they are
unable to raise the money necessary to finance an adequate campaign. Thus, the pool of potential candidates is initially reduced by the economic special interests that make most campaign
contributions. Securing office space, creating and maintaining a campaign website and social
media presence, printing and mailing campaign literature, building a campaign organization,
and purchasing advertisements are all among the necessary ingredients for a successful campaign. A legislator may also use political contributions for such personal expenses as “reasonable household expenses in Austin” if the individual does not ordinarily reside in Austin.
In 2014, the National Institute on Money in State Politics found that the 319 candidates
who ran for the Texas House raised an average of $206,511 for their campaigns. The 68 Texas
Senate candidates raised an average of $426,178 for their campaigns.5 The 387 candidates
171
172
★
7
The Legislature
Texas Insiders
Campaign Contributors in Texas Legislative
Elections: Following the Money
Campaign contributors gave $66 million to
candidates running for the Texas House of
Representatives and $29 million to candidates
for the Texas Senate in 2014. Most of the
contributions went to incumbents running for
reelection and, able to outspend their challengers by 12 to 1, most of the incumbents won
their races. Along with candidates’ incumbency
and their party affiliation, campaign funding is
an outstanding predictor of general election
victory—the legislative candidates who outspent their opponents won most of the time.
Table 7.1 shows the largest campaign contributors in all candidates’ campaigns for the Texas
House of Representatives and the Texas Senate.
In some instances, organizations themselves did
not donate; rather, their money came from the
organizations’ PACs, their individual members,
employees, or owners.
Thinking about the role of elites in Texas
politics
may be trying to help elect candidates who
best represent their interests and viewpoints.
In other instances, their pattern of giving does
not seem to be directed at affecting election
outcomes but, instead, seems to be an attempt
to influence the legislative process itself. For
example, contributors may target their giving to incumbents in safe districts, especially
those who hold powerful legislative positions
such as committee chairs and the speakership;
even those candidates who are unopposed for
reelection often have huge campaign accounts.
Occasionally, a single contributor will give to
both candidates in the same closely contested
race. Contributors frequently give money to the
winner even after election day—so-called “late
train” contributions.
Whatever their motivations, large donors usually have considerable success with their legislative agendas. In Chapter 10, we will discuss
the stunning legislative successes of Texans for
Lawsuit Reform, the largest single funder of
Texas Senate campaigns.
Large contributors pursue several strategies:
In closely contested races, some contributors
TABLE 7.1 Top Five Campaign Contributors for 2014 House and Senate Campaigns
House
Contributor
Senate
Total
Contributor
Total
Texans for Lawsuit Reform
$2,171,047
Texans for Lawsuit Reform
$2,145,213
Texas Association of
Realtors
$1,460,494
Texas Association of
Realtors
$518,091
Texans for Joe Straus
$917,872
Back to Basics PAC
$510,500
Charles C. Butt
$820,500
Donald Huffines
$500,000
Empower Texans
$702,432
Texas Medical Association
$409,942
National Institute on Money in State Politics.
 What indicates when a campaign contribution might be intended to influence how a legislator votes?
 How can voters, small contributors, and less well-organized groups balance the political influence of
large contributors?
Electing Legislators
173
raised a total of almost $95 million for their campaigns in the House and Senate races.6 The
amount of money needed to win an election is growing and becoming increasingly out of
reach for many would-be candidates. Our Texas Insiders feature puts a face on the organizations and individuals who dominate the funding of legislative campaigns.
Demographic Identity The state of Texas has one of the most diverse populations in
the United States. It is one of the few states with a majority minority population, meaning that
the majority of the population are members of an ethnic or racial minority group.7 Currently,
43 percent of the population is non-Hispanic white (Anglo), 40 percent is Hispanic,8 11 percent is African American, and 4 percent is Asian American.9 Texas legislators are fairly diverse,
but they do not fully mirror the population. Descriptive representation is the idea that
elected bodies should accurately represent not only constituents’ political views but also the
ethnic and social characteristics that affect their political perspectives. There is some diversity
in the legislature, but the legislature does not fully reflect the state’s population as a whole.
As Figure 7.2 indicates, the members of the Texas Legislature are primarily Anglo and
male. While African Americans have achieved descriptive representational parity with the
state’s overall African American population, the representation of women, Latinos, and Asian
Americans continues to lag behind the overall population of those groups in Texas.
Occupation Descriptive representation is far less apparent in the occupations of most
Texas legislators. In the Texas Legislature, 57 members are business owners or executives,
slightly outnumbering the 56 members who are lawyers. Together, these two professions
account for more than 60 percent of the legislators. Real estate, consulting, ranching, and
medical fields account for most of the professions other than lawyers and business owners.10
Occupations can and do limit a person’s ability to serve in the Texas Legislature. Legislators
must have enough flexibility in their occupations to take time away from their jobs to serve in
the legislature 140 days every other year and to attend to constituents and other state business
when the legislature is not in session.
Education Texas has one of the best educated legislative bodies in the United States,
which means that it is unlikely that Texas legislators will ever achieve educational descriptive
representation with the general population of the state. Although only 26 percent of Texans
age 25 and older hold college degrees, the Texas Legislature ranks fifth in the nation in the
percentage of lawmakers with a college degree. According to the Chronicle of Higher Education, less than 74 percent of lawmakers in the nation hold college degrees; more than 86 percent of Texas lawmakers hold at least a bachelor’s degree, and 48 percent have earned higher
degrees. Only 4 percent of Texas lawmakers have not attended college.
Texas ranks first in the percentage of lawmakers who are lawyers, with 30 percent of Texas lawmakers holding law degrees.11 As an informal qualification to become a legislator in the state, educational attainment seems to resonate with voters as being a very important aspect of being electable.
Economic Status Texas lawmakers are required to report their sources of income, real
estate assets, and stocks. However, when it comes to reporting the actual financial worth of
the lawmakers’ income and stock values, the reporting requirements are less precise. Income
is reported in ranges, the highest range being $25,000 and above, and stock ownership is
reported in ranges from greater than $500 to $10,000 and above as the highest.12 Given these
parameters, it is difficult to determine the actual net worth of Texas legislators, but they
appear to have enough income to be able to serve in a “citizen legislature” that pays a salary of
$7,200 a year. Both the wealthy legislators and those less well-off are allowed to solicit retainers and consulting fees to supplement their incomes, making it unlikely that their average
incomes reflect the economic status of the average Texan.13
descriptive
representation
The idea that elected
bodies should accurately represent not
only constituents’
political views but also
the ethnic and social
characteristics that
affect their political
perspectives.
174
7 The Legislature
FIGURE 7.2 Gender, Ethnicity, and Race of Texans and Their Legislators
This figure shows how the ethnic, racial, and gender makeup of the Texas Legislature
differed from the population as a whole in 2015. Women are by far the most underrepresented group.
80%
80
70
65%
60
50%
Percentage
50
43%
40%
40
50%
30
23%
20%
20
11% 11%
10
4%
0
2%
Asian
American
African
American
Latino
Texas Population
★ CTQ
Anglo
Female
Male
Texas Legislators
Is it important that legislators’ ethnic, racial, and gender identities match those of the population? Why or why not? Can
Anglo males represent a state that is increasingly minority? Or
do ethnicity, race, and gender make a difference in perspectives on public policy?
U.S. Census Bureau, Office of the Texas State Demographer, and The Texas Tribune.
Geographic Districting
single-member
district
A district that elects
one senator or one
representative; districts should be equal
in population.
Each legislator is elected from a single-member district, with the state representative districts being quite a bit smaller than the senate districts. The 150 House districts should be
equal in population, as should the 31 Senate districts. After the 10-year census has been completed, districts must be redrawn to reflect population changes in the state and to equalize
the population in each district.
After the 2010 elections, Republicans controlled both the House and Senate with large
majorities and were easily able to agree on district maps that were favorable to the Republican
Party, as reflected in Figures 7.3 and 7.4.
42
ZAPATA
STARR
43
34
NUECES
38
37
CAMERON
WILLACY
KENEDY
32
S
SA
N
OU
N
SAN
JACINTO
POLK
G
AL
VE
24
ST
29 ON
25
BRAZORI
FORT BEND
28 26
27
HARRIS
126-150
A
22
47
TRAVIS
COUNTY
JEFFERSON
ORANGE
21
19
HARDIN
CHAMBERS
23
SHELBY
TYLER
LIN
GE
AN
NACOGDOCHES
MO
NT16
18
GO
M
LIBERTY
3 15ERY
WALKER
MATAGORDA
WHARTON
85
SO
CK
JA
LH
CA
IA
OR
AN
AR
GIO
30
FU
RE
SAN PA
TRICIO
KLEGERG
35
41 40
36 39
HIDALGO
JIM HOGG BROOKS
JM
WELLS
LIVE OAK
GOLIAD
CT
VI
AUSTIN
13
COLORADO
LAVACA
FAYETTE
DEWITT
GONZALES
BEE
KARNES
WILSON
44
GUADALUPE
L
WEL
CALD
57
TRINITY
HOUSTON
RUSK
11
9
PANOLA
HARRISON
MARION
CASS
BOWIE
48
97
99
49
90
93
64
132
96
51
95
91
149
46
135
126
105
150
111
104
148
141
140
50
89
70
142
33
129
128
HARRIS
COUNTY
144
127
113
107
110
100
112
67
109
DALLAS
COUNTY
103 108
114
102
66
COLLIN
COUNTY
143
133
137 134
145
146
147
131
138
101
130
94
92
139
65
106
98 TARRANT 115
COUNTY
63
DENTON
COUNTY
What districting practices were used to create these House districts? Can you explain why the legislature may have
drawn District 128 in Harris County the way it is?
118
119
Source: Texas Legislative Council Plan H309.
★ CTQ
117
125
31
N
DUVAL
M
124
ATASCOSA
LE
120
BEXAR
COMAL
116-125
UL
WEBB
LA SALLE
FRIO
MEDINA
73
KENDALL
CM
116
121
DIMMIT
80
ZAVALA
UVALDE
BANDERA
LER
WAL
MAVERICK
M
KERR
14
WASHINGTON
BURLESON
MADISON
LEON
GRIMES
KINNEY
REAL
12
ROBERTSON
E
6
7
GREGG
UPSHUR
CAMP
TITUS
SMITH
5
ON
RS
SON
DE
AN
DER
HEN
1
RED RIVER
WOOD
HOPKINS
VAN
ZANDT
STON
OS
EDWARDS
LEE
MILAM
20
FALLS
NE
TO
ES
LIM
AZ
VAL VERDE
WILLIAMSON
52
TRAVIS
45 46-50
47
17
45HAYS48 51BASTROP
BLANCO
55
BELL
MCLENNAN
56
8
FREE
NAVARRO
10
4
LAMAR
DELTA
NEWTON
123
TERRELL
CH
BR
GILLESPIE
LLANO
BURNET
54
LAMPASAS
CORVELL
HAMILTON
58
BOSQUE
HILL
JOHNSON ELLIS
SOMERVELL
HOOD
33
90-99
TARRANT DALLAS
100-115
ROCKWELL
2
HUNT
62
FANNIN
JASPER
BEXAR
COUNTY
122
BREWSTER
LO
MASON
MILLS
SAN SABA
BROWN
59
ERATH
COMANCHE
EASTLAND
61
PARKER
GRAYSON
64 106 70
DENTON COLLIN
63-65 66 89
COOKE
SABINE
PRESIDIO
KIMBLE
UL
53
CC
SUTTON
MENARD
SCHLEICHER
COLEMAN
CROCKETT
CONCHO
TOM
GREEN
72
AN
60
PALO
PINTO
WISE
UE
G
TA
SAN TINE
US
AUG
JEFF D AVIS
K
IRION
STERLING
PECOS
OC
REAGAN
RUNNELS
AH
LL
CA
NS
HE
EP
ST
JACK
ON
M
KEE
UPTON
82
SC
CRANE
AS
WARD
GL
REEVES
COKE
71
SHACKELFORD
YOUNG
THROCKMORTON
CLAY
Democrat
RO
CHE
74
CULBERSON
MIDLAND
L
TAYLOR
JONES
ARCHER
BAYLOR
69
WICHITA
AN
ECTOR
NOLAN
FISHER
HASKELL
KNOX
WILBARGER
M
WINKLER
85
SCURRY
KENT
KING
DICKENS
FOARD
AN
EM
Republican
K
HOWARD MITCHELL
BORDEN
GARZA
CROSBY
COTTLE
MOTLEY
RD
HA
85th Legislature, 2016–2017
Texas House of
Representatives Districts
F
AU
81
MARTIN
ANDREWS
LYNN
DAWSON
83
TERRY
84
LUBBOCK
FLOYD
AL
EW
GAINES
YOAKUM
HOCKLEY
HALE
88
CHILDRESS
COLLINGSWORTH
68
HALL
DONLEY
L
B
IL
PH
ON
S
HUDSPETH
LOVING
N
RA
CH
CO
LAMB
BRISCOE
NG
BAILEY
RO
ST
IN
EL PASO
75
ST
SWISHER
M
CASTRO
RANDALL
AR
DEAF SMITH
GRAY
ROBERTS
M
CO
HE
M
PS
LI
R
PARMER
CARSON
ON
LE
RA
75-79
76
NS
77
HI
86
TC
79
HU
POTTER
RD
87
MOORE
FO
OLDHAM
HARTLEY
EE
78
NS
EL PASO
COUNTY
SHERMAN
HA
R
LT
EE
FRANKLIN
HI
WH
MORRIS
OC
DALLAM
FIGURE 7.3 Texas House of Representatives Districts, 85th Legislature, 2017–2018
Electing Legislators
175
ZAPATA
STARR
HIDALGO
JIM HOGG BROOKS
20
JM
WELLS
LIVE OAK
CAMERON
WILLACY
27
KENEDY
KLEGERG
NUECES
S
N
FORT BEND
ST
LV
E
17*
BRAZORI
11
POLK
ON
A
3
ORANGE
CHAMBERS
JEFFERSON
4
HARDIN
TYLER
LIN
GE
AN
LIBERTY
7 HARRIS
15
6
13GA
RY
SAN
JACINTO
ME
GO
NT
MO
MATAGORDA
WHARTON
N
SO
CK
JA
LH
OU
CA
IA
A
NS
A
AR
GIO
FU
RE
GOLIAD
SAN PA
TRICIO
BEE
KARNES
OR
CT
VI
18
LAVACA
COLORADO
AUSTIN
WASHINGTON
BURLESON
FAYETTE
DE WITT
GONZALES
BASTROP
LEE
WALKER
TRINITY
HOUSTON
SHELBY
PANOLA
HARRISON
NACOGDOCHES
RUSK
GREGG
820
18
290
TARRANT
COUNTY
30
10
10
17
9
Fort Worth
380
DENTON
COUNTY
35
7
30
12
30
13
45
377
635
23
610
15
20
16
45
Houston
6
2
COLLIN
COUNTY
11
4
10
DALLAS
COUNTY
HARRIS
COUNTY
Dallas
8
75
Does districting have an effect on public policy? How much influence will Democratic senators have on the lawmaking process in Texas?
21
37
Source: Texas Legislative Council, Plan S172.
★ CTQ
35
87
DUVAL
N
410
LE
San Antonio
21
UL
WEBB
LA SALLE
ATASCOSA
CM
19
35
DIMMIT
FRIO
WILSON
GUADALUPE
COMAL
25
26
BEXAR
M
90
26
25
ZAVALA
UVALDE
MEDINA
BANDERA
KENDALL
HAYS
TRAVIS
WILLIAMSON
14
MADISON
LEON
LER
WAL
KINNEY
M
KERR
BLANCO
MILAM
5
ROBERTSON
NE
TO
ES
GRIMES
MAVERICK
REAL
CH
EDWARDS
LLANO
BELL
FALLS
MCLENNAN
B
GILLESPIE
BURNET
LAMPASAS
CORVELL
E
STON
OS
VAL VERDE
LO
MASON
SAN SABA
24
MILLS
LIM
ON
RS
DE
AN
SMITH
CASS
MARION
NEWTON
281
BREWSTER
TERRELL
KIMBLE
UL
SUTTON
MENARD
SCHLEICHER
CC
Z
RA
19
CONCHO
HAMILTON
FREE
NAVARRO
HENDERSON
1
BOWIE
JASPER
PRESIDIO
K
TOM
GREEN
COLEMAN
CROCKETT
STERLING
IRION
BROWN
22
ELLIS
KEE
JEFF DAVIS
OC
REAGAN
RUNNELS
BOSQUE
HILL
HOOD JOHNSON
SOMERVELL
UPSHUR
CAMP
TITUS
RED RIVER
RO
PECOS
UPTON
SC
CRANE
AS
WARD
GL
REEVES
COKE
ERATH
COMANCHE
EASTLAND
PARKER
LAMAR
DELTA
DENTON
2 HOPKINS
HUNT
8
12
16 ROCKWELL
9 DALLAS
WOOD
TARRANT
VAN
10 23
ZANDT
FANNIN
CHE
SAN TINE
US
AUG
10
29
CULBERSON
MIDLAND
AN
AH
LL
PALO
PINTO
WISE
COLLIN
GRAYSON
Democrat
SABINE
BEXAR
COUNTY
HUDSPETH
ECTOR
L
CA
NS
HE
JACK
COOKE
U
KA
TAYLOR
ST
30
CLAY
AN
FM
WINKLER
HOWARD MITCHELL
JONES
YOUNG
THROCKMORTON
EP
WICHITA
ARCHER
BAYLOR
SHACKELFORD
HASKELL
KNOX
WILBARGER
Republican
S
LOVING
NOLAN
SCURRY
AN
EM
FOARD
RD
HA
85th Legislature, 2017–2018
IN
EL PASO
FISHER
AL
EW
MARTIN
ON
ANDREWS
ST
BORDEN
KING
DICKENS
KENT
COTTLE
MOTLEY
CHILDRESS
COLLINGSWORTH
Texas Senate Districts
M
DAWSON
GARZA
IL
L
RA
GAINES
LYNN
28
CROSBY
M
PH
HE
B
OM
SC
LI
P
UE
TERRY
HOCKLEY
LUBBOCK
FLOYD
HALL
DONLEY
GRAY
ROBERTS
EE
OC
HI
LT
R
G
TA
ON
YOAKUM
R
CH
CO
AN
HALE
BRISCOE
NG
LAMB
RO
BAILEY
ST
SWISHER
M
CASTRO
AR
PARMER
CARSON
ON
POTTER
NS
R
RANDALL
HI
31
TC
LE
DEAF SMITH
HU
MOORE
RD
OLDHAM
SHERMAN
FO
HARTLEY
DALLAM
FIGURE 7.4 Texas Senate Districts, 85th Legislature, 2017–2018
NS
EE
FRANKLIN
HA
WH
MORRIS
176
7 The Legislature
Electing Legislators
Figures 7.3 and 7.4 show how the Texas Senate and House of Representatives district lines
are currently drawn. The state legislature is responsible for drawing the districts from which
they, themselves, will be elected. Legislators, therefore, have a considerable personal political
stake in the districting process, and it is not surprising that they have sometimes found it
impossible to agree on where district lines should be drawn.
If the legislature fails to redistrict, the state constitution requires the Legislative Redistricting Board to redraw the lines. This board is ex officio, which means that its members hold
offices or positions automatically because they also hold some other office. It is made up of
the lieutenant governor, the speaker of the house, the attorney general, the comptroller, and
the commissioner of the General Land Office. In practice, even this board has sometimes
found itself at a stalemate and the courts have been forced to step into the state’s redistricting
processes.
After the 2010 census, the average population of an electoral district for the Texas House
of Representatives was 171,165; House members represented 32,000 more people than they
did a decade earlier. Texas senators represented approximately 828,216 residents, an estimated 156,000 more people than they did after the 2000 census.
Malapportionment Geographic districting uses census data to divide the population
into approximately equal districts for every elected position, but this has not always been the
case. Historically, as state populations began to shift from rural areas to the cities in the early
twentieth century, rurally dominated legislatures simply ignored urban growth as they drew
new district lines. The result was sparsely populated rural districts and densely populated
urban districts, which maintained rural control over newly urban states like Texas.
However, in the 1960s, U.S. Supreme Court decisions in several cases, including Reynolds
v. Sims, outlawed malapportionment, the drawing of district lines so that one district’s population is substantially larger or smaller than another’s. The Supreme Court ruled, “Simply
stated, an individual’s right to vote for state legislators is unconstitutionally impaired when
its weight is in a substantial fashion diluted when compared with votes of citizens living in
other parts of the State.”14
Based on the principle of “one person, one vote,” this decision mandated reapportionment—a redistricting, or redrawing of district lines, after every census to reflect the actual
population changes over the previous decade; it required that district lines be drawn so that
the population of all districts is approximately equal. In practice, the population of state legislative districts can deviate plus or minus 5 percent from the average, but not more.
Gerrymandering Gerrymandering is the practice of drawing district lines in such a
177
ex officio
Holding a position
automatically because
one also holds some
other office.
malapportionment
The drawing of district lines so that one
district’s population is
substantially larger or
smaller than another’s.
reapportionment
The redistricting, or
redrawing of district
lines, after every census to reflect the population changes over
the previous decade.
gerrymandering
The practice of drawway as to give an advantage to candidates from a certain party, ethnic group, or faction at the
ing district lines in such
expense of other groups. It should not be confused with malapportionment because gerrya way as to give canmandering is possible even when the population of every district is equal; it is more a matter
didates from a certain
party, ethnic group, or
of which people are drawn into each district rather than how many.
faction an advantage.
Where district lines are drawn has an enormous impact
on the political, ideological, racial, and ethnic makeup of
a legislative body and the policies that it produces. During
Did You Know? Drawing district lines for parthe redistricting process, political careers may be made or
tisan political advantage got the name gerrymandering in
broken, public policy determined for at least a decade, and
1812, when the Massachusetts legislature and Governor
Elbridge Gerry, wishing to preserve a Federalist majority,
the power of ethnic or political minorities neutralized.
redrew a district in such a convoluted shape that a politiPartisan gerrymandering is the drawing of district lines
cal cartoonist portrayed it as a salamander and dubbed it
to maximize the majority party’s representation. District
the “Gerrymander.” The shapes of several current Texas
lines are drawn so that the majority party’s voters are able
congressional districts exceed the oddity of those origito elect as many legislators as possible. The U.S. Supreme
nally gerrymandered districts in Massachusetts.
Court has ruled that partisan gerrymandering is a political
178
7 The Legislature
cracking
A gerrymandering
technique of dividing
up a minority party’s
voters into so many
geographical districts
that their voting power
in any one district is
negligible.
packing
Gerrymandering technique in which members of a party are
concentrated into one
district, thereby ensuring that the group will
influence only one district’s election rather
than several.
matter that does not violate the Fourteenth Amendment of the U.S. Constitution. Another
look at Figures 7.3 and 7.4 shows that the 2012 redistricting plans relied heavily on partisan
gerrymandering, which allowed the Republican voting bloc to maintain large majorities in
both houses of the Texas Legislature.
Gerrymandering Techniques Three basic gerrymander techniques are generally
used to draw district lines to benefit the majority party. Cracking is the technique of dividing up a minority party’s voters into so many geographical districts that their voting power in
any one district is negligible; areas that would otherwise support the minority party are split
into several districts that the majority party controls. To get a better idea of how cracking a
population works, look at Figure 7.5.
Another technique of gerrymandering involves concentrating, or packing, the minority party into as few districts as possible to minimize the number of legislators it can elect.
The majority party uses this technique when there may be so many votes for the minority
party candidate that, if left in non-gerrymandered districts, they could affect the outcome
of elections in many districts. Figure 7.5 shows how the packing technique might benefit the
majority party.
FIGURE 7.5 A Schematic to Illustrate the Process of Gerrymandering
In the schematic on the left, the blue dots represent eight Democrats and the red
dots represent the same number of Republicans in four equally competitive districts,
each electing one legislator. The figure on the right shows how the same population
can be gerrymandered to guarantee a three-to-one advantage for Democrats. Try
your hand at drawing districts with a three-to-one advantage for the Republicans.
1
2
1
2
4
3
4
3
★ CTQ
Cengage Learning
Explain why District 4 in the second schematic represents a packing strategy. Your instructor may choose to simulate gerrymandering strategies by
grouping and regrouping actual students in your class.
Electing Legislators
A third form of gerrymandering is a practice called pairing. Pairing is a redistricting
technique that combines two or more incumbent (currently elected) legislators’ residences
and parts of their political bases into the same elective district. At election time, the voters
are then given the choice between the two current legislators but only allowed to vote for one,
thereby ensuring that one will be defeated. The idea behind this type of redistricting is to
create a district that will ensure that one incumbent will win over the other—usually for the
majority party’s incumbent to be able to represent the new district. By cracking or packing
the remaining parts of the paired district into neighboring districts, the majority party can
control a larger share of the legislative body.
Alternatives
179
pairing
Placing two current
officeholders and parts
of their political bases
in the same elective
district through
redistricting.
incumbent
Currently elected
officials.
to Gerrymandering Several
states have recognized the conflict of interest inherent in
Did You Know? Legislators are often quoted
allowing legislators to draw their own election districts. A
as saying during redistricting that “rather than the votnumber of them have reduced the role of the legislature in
ers choosing us, we choose the voters.” Redistricting
redistricting and have instead turned much of the process
is the process in which politicians choose their voters
rather than the other way around.
over to an independent bipartisan or nonpartisan commission. Many Texans would like to see their state follow this
lead.
During the heat of the redistricting controversy in the winter of 2012, Texans were asked
what they felt were the state’s most pressing problems. Although the expected issues of the
economy, unemployment, and border security were at the top of the list, surprisingly, 5 percent of Texans polled pointed to legislative redistricting as one of the state’s most important
problems.15 It ranked in seventh place, ahead of gas prices and water supply.16 A sizable number of Texans—42 percent—supported the creation of an independent redistricting commission to redraw legislative district lines. Twenty-nine percent of Republicans, 43 percent
of independents, and 70 percent of Democrats supported the creation of an independent,
nonpartisan redistricting commission to reduce political considerations in the drawing of
legislative district boundaries.
Democrats and members of minority groups may support creating a redistricting commission in Texas because they believe gerrymandering unfairly costs them political representation as Republican legislators have drawn districts to their party’s advantage. Others
may support an independent redistricting commission because they believe it is a conflict of
interest for legislators themselves to draw the lines from which they are elected. Furthermore,
gerrymandering reduces party competition in elections as legislators draw district lines to
make sure a member from one party is elected over the other.
Racial Gerrymandering Unlike partisan gerrymandering, which the Supreme
Court considers a political matter, racial or ethnic gerrymandering is a special legal issue
because the U.S. Constitution forbids government discrimination based on race. In two
cases,17 the Court ruled that drawing district lines to limit racial minority influence violates
the Fourteenth Amendment. Not only did the Court rule in both of these cases that racial
gerrymandering is unconstitutional, but in one districting case, the Court went so far as to
say that the racial intent was obvious because district lines were so “irregular and bizarre in
shape that they could not be understood to be anything other than to segregate voters.”18
The federal Voting Rights Act of 1965 also prohibits policies intended to dilute minority
voting strength, which presented a special problem for Texas legislative districting after the
2010 census.19 Several groups sued the state before the newly drawn maps could be put in
place. Because of the Voting Rights Act, Texas and eight other states with histories of racial
discrimination were required to submit their district maps to the U.S. Department of Justice
(DOJ) or to the U.S. District Court for the District of Columbia for review (preclearance).
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7 The Legislature
In 2013, however, the U.S. Supreme Court (in Shelby v. Holder) concluded that the formula
used to determine which states were required to seek preclearance was unconstitutional (see
Chapter 2). This decision resulted in Texas and the eight other states no longer having to
obtain preclearance. Texas was thus able to keep using the Republican-dominated district
maps drawn by a federal district court in San Antonio, maps which were based heavily on the
maps initially created by the Republican majority in the Texas Legislature in 2011.20
As a result, the Texas Legislature continues to be dominated by Republicans at the expense
of Democrats and the large portion of ethnic and racial minorities who identify with them.
Partisan and ethnic gerrymandering partially explains why the legislature does not reflect the
political and demographic make up of the state’s 27 million residents.
IMAGE 7.2 Lieutenant
Governor Dan Patrick
holds an office with
power that rivals the
governor’s.
Powers of the Legislature and Its Leaders
LO 7.3 Analyze the powers of the legislature and its
presiding officers.
The presiding officer of the Texas House of Representatives is the speaker of the house
and the lieutenant governor acts as president of the senate. The presiding officers have
extensive appointment power over boards, commissions, and legislative committees.
Both legislative chambers have broad powers that allow them to pass laws making
public policy and to monitor state agencies, control the budgeting process, and engage
in self-policing. As it exercises these powers, the legislature has the assistance of several boards, councils, and commissions that provide leadership and advice to both the
House and the Senate.
Bob Daemmrich/Alamy
Powers of the Presiding Officers
★ CSQ
Write a carefully constructed essay that
explains both the lieutenant governor’s executive and legislative
powers. Specifically,
describe how the lieutenant governor is able
to control the Texas
Senate. Why do you
suppose the Senate has
written rules that give
so much power to its
presiding officer when
most other states make
their lieutenant governor a mere figurehead,
like the vice president
in the U.S. Senate?
The two most powerful individuals in the Texas Legislature are the lieutenant governor and the speaker of the house. The rules of each house, formal and informal,
give the presiding officers the procedural power to appoint most committee members
and committee chairpersons, assign bills to committees, schedule legislation for floor
action, recognize members on the floor for amendments and points of order, interpret
the procedural rules when conflict arises, and appoint the chairpersons and members
of joint and conference committees. Furthermore, statutes grant the presiding officers
institutional powers to appoint the members and serve as joint chairs of the Legislative
Budget Board and Legislative Council and determine the members of the Legislative
Audit Committee and the Sunset Advisory Commission.
Lieutenant Governor The presiding officer in the Texas Senate is the lieutenant governor, who serves as the president of the senate. The lieutenant governor is
elected independently from the governor for a four-year term in a statewide, partisan
election, and is paid a $7,200 annual salary.
The lieutenant governor is in the unique position of having important roles in both
the legislative and executive branches. As part of the executive branch, the lieutenant
governor becomes governor if that office becomes vacant through death, disability, or
resignation. In that event, the Senate elects one of its members to serve as lieutenant
governor until the next regular election.
As part of the legislative branch, the lieutenant governor also serves as the presiding
officer over the state Senate and has a great deal of power as a result.
The Texas Constitution allows for the Senate to write its own rules at the beginning of
each 140-day legislative session, and these rules give the lieutenant governor extensive legislative powers as well as organizational, procedural, administrative, and planning authority.
Powers of the Legislature and Its Leaders
181
Although not actually a senator, the lieutenant governor can break tie votes on bills, and
the Senate rules allow for the entire Senate to convene as a committee of the whole, which
allows the lieutenant governor to debate and vote on any bill as long as the Senate is designated as a committee.
Powers of the Legislature
The powers of the legislature include passing bills and resolutions, representing constituencies, and conducting bureaucratic oversight and
investigations. The Texas Senate has the power to approve or disapprove
gubernatorial appointments. Some extraordinary powers, like initiating
a legislative redress action or impeachment, are only rarely used.
IMAGE 7.3 A bipartisan coalition in
the Texas House of Representatives first
elected Joe Straus in 2009, but his moderate image created political problems
for the speaker with more conservative
Republicans.
AP Images/Harry Cabluck
Speaker of the House The presiding officer of the 150-member
House of Representatives is the speaker of the house. The speaker of
the house is an elected representative and has a two-year term with an
annual salary of $7,200. The speaker is chosen from among the membership of the representatives, and is usually a member of the majority
party in the House. Currently, the majority party is Republican, and
the speaker is a Republican representative, Joe Straus, from San Antonio, Texas.
During the session, the speaker maintains order during floor debate,
recognizes legislators who wish to speak on the House floor, and decides
on procedural matters as the need arises. Unlike the lieutenant governor,
as a member of the House of Representatives, the speaker may debate
bills and is allowed to vote on all bills and resolutions that pass through
the House, although by custom the speaker rarely casts a roll call vote.
Some of the speaker’s most important duties and responsibilities are
determined by the House Rules of Procedure, which are adopted by a
majority vote of the members at the beginning of each regular session of
the legislature. The rules give the speaker the authority to appoint the
members of each standing committee, to designate the chairperson and
vice chair for each committee, and to refer all proposed legislation to
the appropriate committee. The speaker also appoints members to conference and joint committees, creates select committees, and authorizes
committees to conduct business during the interim when the legislature
is not in session.
What is unique about the speaker’s position is that it is an elected
office, albeit only within the House of Representatives, but an elected
position nonetheless. As a result, candidates who want to be elected to
the position must campaign for it.
★ CTQ
How is the speaker’s bargaining position affected
by the need to win a majority of fellow representatives to get reelected?
Passing Bills The primary responsibility of the legislature is to pass bills, which are
proposals to pass new laws, change existing ones, or adopt the state budget. A bill may be
introduced in either chamber of the legislature; it is designated by the abbreviations HB
(House Bill) or SB (Senate Bill) according to where it was first introduced and carries the
same designation throughout the legislative process. A bill must be passed by both houses by
a majority vote and be presented to the governor to be signed into law. We will explore the
major steps in the legislative process later in the chapter.
Bills fall into three categories: special, general, and local. Special bills create exceptions to
laws already enacted; general bills apply to everyone in the state; local bills usually apply to a
182
7
The Legislature
single unit of local government and usually pass at the request of legislators representing the
area. Bills normally take effect 90 days after they pass unless a two-thirds majority of each
house votes to have the bill take effect as soon as the governor signs it.
Because the legislature is required to read and decide upon hundreds of bills during a legislative session, they have several legislative organizations that help with the process, including
the Legislative Council and the Legislative Budget Board.
The Legislative Council The 14-member Legislative Council is a joint legislative committee that supervises a staff that provides research support, information, and bill-drafting
assistance to legislators. It is dominated by the speaker and lieutenant governor and includes
six members from each chamber appointed by the presiding officers. The Legislative Council
staff is specialized in document production, information systems, legal services, and research;
it also plays a key role in the redistricting process.21
The Legislative Budget Board The most important of the bills to pass through the
resolution
A formal expression of
legislative sentiment,
such as recognizing
people, memorializing events, or making decisions that do
not involve passing
statutes.
simple resolution
A resolution passed by
a single house of the
legislature affecting
only that house and
needing no action by
the governor.
concurrent resolution
A resolution requiring the House and
the Senate to agree
by simple majority
and usually requiring approval by the
governor.
joint resolution
A resolution, such
as one dealing with
constitutional amendments, that requires
approval of both
houses but not the
governor.
legislature is the state’s budget, or appropriations bill. The state’s budget must be approved
for a full two-year cycle and includes items such as transportation, education, health benefits,
law enforcement, and state park maintenance. To expedite the process of creating the state’s
multi-billion-dollar budget, the legislature has the help of the Legislative Budget Board.
Most states, the U.S. government, and most countries have only one budget, but Texas has
two. Each agency in state government presents its budget request to both the governor’s office
and the powerful Legislative Budget Board (LBB). The LBB is a 10-member board whose
major function is to provide the governor and the legislature with a draft of the appropriations
(budget) bill. The LBB also has broad authority for strategic long-range planning, bill analyses, and policy impact analyses, and it makes recommendations to improve the efficiency and
performance of state and local operations.22
The 10 members of the board include the lieutenant governor and the speaker of the
house, who serve as joint chairs and who appoint an equal number of legislators from each
house. The LBB operates continuously, even when the legislature is not in session, under the
management of an administrative director appointed by the board; its staff assists the senate
and house appropriations committees and their chairs and serves as an oversight committee
on how expenditures are managed by the state executive agencies and departments.
Passing Resolutions Another responsibility of the legislature is to pass resolutions. A
resolution is a formal expression of legislative sentiment, such as recognizing people, memorializing events, or making decisions that do not involve passing statutes. Resolutions can
be passed by only one legislative chamber or passed by both, with or without gubernatorial
action. Resolutions can be simple, concurrent, or joint, each with a specific purpose.
A simple resolution may be passed by a single house of the legislature; it affects only that
house and needs no action by the governor. The House or the Senate can use a simple resolution to change its rules and procedures, to invite a nonmember to address the entire chamber,
or to honor someone in the state.
A concurrent resolution needs both the House and the Senate to agree by simple majority
and is sent to the governor, who then has the option to either sign it or veto it. Examples of
concurrent resolutions include making legislative requests for action by the U.S. Congress,
requiring information from state agencies, establishing joint study committees made up of
members of both houses, or allowing someone to sue the state.
A joint resolution requires approval of both houses but does not require action by the
governor. Examples of joint resolutions include proposals of state constitutional amendments, which require a two-thirds vote of both houses before being presented to voters for
Powers of the Legislature and Its Leaders
183
ratification. The legislature also uses joint resolutions to ratify proposed amendments to the
U.S. Constitution.
Representing their Constituents Legislators are elected by voters who have
expectations of their representatives. Each senator and representative must decide how to
approach the job to meet those expectations. Some legislators see themselves as delegates of
those who elected them while others see their role as being trustees of the public interest. As
delegate type representatives, members may interpret their role as being in the legislature
to represent a majority of voters’ interests. Delegates may rely more heavily on the use of
polls and other collective information to make decisions. As trustee type representatives,
members see themselves as being elected to use their judgment in making decisions in the
best interest of the state as a whole regardless of public opinion. Which role representatives
use in their approach to the legislative job largely depends on how issues affect their district
and the need to strike a balance between the demands of their district and the broader needs
of the state.
Conducting Bureaucratic Oversight and Investigations The legislature monitors state agencies to see that these agencies are carrying out public policies as
intended—a process known as bureaucratic oversight. The legislature requires agencies to
submit periodic reports to the legislature concerning how they spend their money and conduct their operations. The legislature has investigative power and has given committees the
power to require individuals to testify under oath and to require agencies being investigated
to provide documents and records of their operations. Legislative committees commonly
use these powers to look into problems in the bureaucracy in order to determine if new or
modified legislation is required. Two legislative organizations assist in the oversight and
evaluation of state agencies—the Legislative Audit Committee and the Sunset Advisory
Commission.
The Legislative Audit Committee The Legislative Audit Committee appoints and
supervises the state auditor who, with the consent of the Senate, heads the State Auditor’s
Office. The six-member Legislative Audit Committee is composed of the lieutenant governor,
the chair of the Senate Finance Committee, one senator chosen by the lieutenant governor,
the house speaker, and the chairs of the House Appropriations Committee and Ways and
Means Committee.
The authority of the office of the state auditor is both broad and deep. Under the direction
of the committee, state agencies and departments, including colleges and universities, as well
as any entity receiving funds from the state, can be audited. The auditor’s office may conduct
financial, compliance, efficiency, effectiveness, and special audits as well.
The Sunset Advisory Commission The Texas Sunset Act (1977) was enacted in
response to the perception by the public that federal and state government spending was
escalating beyond control. To enforce the Act, Texas created the 12-member Sunset Advisory
Commission, which recommends keeping, abolishing, reorganizing, or giving new scope and
authority to state agencies.
The lieutenant governor appoints five senators and one public member, and the speaker
appoints five representatives and one public member to the commission. Public members
are appointed for two-year terms and legislators for four-year staggered terms. The presiding officers appoint the commission chair. The chair position alternates between Senate and
House members. The commission employs a director and a staff that conduct the reviews and
present their findings to the commission.
delegate type
representatives
Legislators who interpret their role as being
elected to represent
a majority of voters’
interests in their
districts.
trustee type
representatives
Legislators who interpret their role as being
elected to use their
judgment in making
decisions in the best
interest of the state as
a whole.
bureaucratic oversight
The legislature monitoring state agencies
to see that these
agencies are carrying
out public policies as
intended.
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7 The Legislature
The commission reevaluates the need for more than 130 statutory state agencies on a
12-year cycle to determine the need for their continuance. When an agency is created, its
particular “sunset” date is included in its charter. About 20 to 30 agencies undergo the sunset
review process every biennium.
In the Sunset Advisory Commission’s almost 40-year history, the commission has
abolished or restructured more than 83 state agencies, including 37 that were completely
abolished. The Sunset Advisory Commission estimates that it has saved the state of Texas
approximately $980 million during its existence.23
Impeachment and Removal from Power The Texas Legislature can call
an impeachment session in which the House of Representatives may charge an official with
wrongdoing. Executive officers of the state, including the governor, lieutenant governor,
the attorney general, the commissioner of the Land Office, and the comptroller of public
accounts, may all be impeached by the House. Elected district judges, appellate judges, and
the judges of the Supreme Court of Texas and the Texas Court of Criminal Appeals may also
be impeached by the House.
Once the House votes to impeach an official, the senate holds a court-like hearing and
may, by a two-thirds vote, remove the official from an elected position. The legislature cannot take any other action except for exposing the charges by impeachment and removing
the person from office. If impeached officials have committed illegal acts, they may later be
prosecuted in regular criminal proceedings. An impeachment session may be called by the
legislature without the governor’s approval.
Legislative Redress The legislature has the power to monitor and police itself by
legislative redress
The power of the
legislature to monitor
and police itself.
using a form of legislative redress. When wrongdoing by a member of the House or Senate
is reported to the leadership, the chamber may create a committee to investigate and determine the fate of the individual who has committed the offense. However, in 2007, House
members were caught voting for absentee members using the automated voting machines at
each desk.24 Although this practice was a clear violation of the Rules of the Texas House, no
one was disciplined for this behavior.
Senate Confirmation Power The Texas Senate must approve of all appointments
made by the governor with a two-thirds vote of the senators present. Senatorial courtesy is an
unofficial means by which a senator from the home district of an appointee has the right to
agree or disagree with an appointment. If the senator objects to a prospective appointee, then
the entire Senate will not approve the appointment. It is thus in the governor’s best interest
to consult with the Senate during the nomination process; knowing in advance that the local
senator agrees with the nominee makes confirmation more likely.
The Legislative Process
LO 7.4 Analyze legislative processes, the committee structure, and how a
bill becomes a law.
Although many of these functions are important, the major function of a legislative institution is to pass laws. Although the House and Senate use slightly different procedures, the
power of the presiding officers is apparent at each step and directly affects whether or not a
bill becomes law.
To understand how a bill becomes a law, you must understand the legislative processes
that begin with the introduction of the bill into the House or Senate. Although only members of the legislature may introduce a bill or propose a law, many bills originate outside the
The Legislative Process
185
legislature as ideas of interest groups or the executive branch. Once a bill is introduced, the
next steps include referral to committee, committee action, scheduling, floor action, conference committee action, and final passage.
The Legislative Committees
standing committees
Permanent committees
that function throughout the legislative
session. There are two
types: substantive and
procedural.
mark up
To rewrite or change a
bill by adding or deleting provisions before
it is considered for
passage.
Standing Committees The most common committees are standing committees,
which are permanent committees that function throughout the legislative session. There
are two types, substantive and procedural, which do much of the legislative work in both
chambers of the Texas Legislature and are part of the permanent structure of the legislature.
pigeonhole
Some of the more important substantive standing committees in the Senate include the State
To set a bill aside and
not take any action
Affairs Committee, the Finance Committee, and committees on education, transportation,
on it throughout the
and criminal justice. Important examples in the house are the State Affairs Committee, the
entire legislative sesWays and Means Committee, the committees on higher education, criminal jurisprudence,
sion; many bills are
pigeonholed.
redistricting, and of course the Appropriations Committee, which operates with several
subcommittees.
Substantive committees consider the content of bills that
IMAGE 7.4 Standing committees do much of
the legislative work, gathering information in pubhave been introduced; they specialize in various types of public hearings and rewriting, or marking up, legislalic policy, such as taxation, education, or agriculture. They
tion to make essential political compromises that
hold hearings and debates; they can mark up bills, rewriting
make a bill’s passage possible. They also screen
or changing them by adding or deleting provisions before
out bills that lack significant support by ignoring or
reporting them out for consideration by the whole House or
pigeonholing them.
Senate. They may also allow bills to be pigeonholed, meaning they are set aside and no action is taken on them for
the entire legislative session. Many bills are pigeonholed for
lack of political support or for lack of time during the short
sessions.
Procedural committees deal with the legislative process.
For example, the House Rules and Resolutions Committee
proposes the rules adopted at the beginning of each regular
session to govern legislative procedure throughout the session. The house calendars committees regulate the flow of
legislation determining when a bill will be taken up for consideration. Other procedural committees deal with rules and
ethics, administration, and investigations.
Standing committees are made up of a chairperson, a
★ CTQ Explain how the presiding officers
vice chair, and members selected by the presiding officers,
influence the work of standing
who must give some preference to the most senior legislacommittees.
tors. Most senators and representatives serve on several
AP Images/Harry Cabluck
Because of the volume of legislative proposals offered each session, legislators cannot possibly
become familiar with all the bills and resolutions—not even all the major ones. As a result,
the legislature is organized into committees for the division of labor necessary to ensure that
every member participates in the debate and discussion on proposed legislation. Committees are often referred to as “little legislatures,” because of the amount of work they do and
the power they wield over the law-making process. Once committees make a decision on
proposed legislation, it is highly likely that the House or Senate will follow its committees’
recommendations.
Legislative committees are organized by subject matter and function. The various types of
committees include standing committees, subcommittees, joint committees, ad hoc committees, select committees, conference committees, and interim committees.
186
7
The Legislature
committees, and attending committee meetings takes up most of the legislator’s time during
the one 140-day regular session.
Because several thousand bills are introduced during each legislative session, a division of labor is necessary. Every bill is referred to a standing committee, which conducts
public hearings in which witnesses—both for and against—may be heard, debates held,
and bills marked up. Because standing committees do the basic legislative work, most
legislators rely heavily on them for guidance in deciding how to vote on a bill once it
reaches the floor.
subcommittees
Subdivisions of standing committees that
consider specialized
areas and categories of
proposed legislation.
joint committee
A committee that
includes both senators
and representatives.
ad hoc committees
A committee designed
to address one specific
task in the legislative
process. Its function
is temporary, and
the committee is disbanded when the function is complete.
select committees
A temporary committee that is created for
one specific purpose
and usually serves in
an advisory capacity.
interim committees
A committee that
meets between legislative sessions.
Subcommittees Some of the standing committees have been further divided into
subcommittees, which specialize in particular categories of legislation. The subcommittees
are usually the first to become familiar with a bill. Made up of a smaller number of standing committee members, subcommittees hold initial hearings, mark up legislation, and then
report their work to the full standing committee.
Joint Committees The membership of any joint committee is made up of both
senators and representatives. Sometimes referred to as boards, these committees can be either
temporary or permanent and usually serve a specific function, like the Legislative Budget
Board (LBB) or the Legislative Education Board (LEB). The presiding officers appoint the
members of these committees, and they either serve as the chair and vice chair or appoint
those who do. The purpose of a joint committee is to evaluate state policy proposals that may
be considered by both chambers, making the passage of the bill easier and faster in the short
session.
Ad Hoc and Select Committees Ad hoc and select committees are tempo-
rary committees as opposed to permanent committees. Ad hoc committees are designed to
address one specific task in the legislative process, such as conference committees that have
the task of ironing out differences between the House and Senate versions of a bill; they are
temporary and are disbanded once they have completed their assignment. As with other committees, they are made up of legislators appointed by the presiding officers.
Select committees are also temporary committees, usually created to study a particular
issue or problem and give advice to the legislature. For example, the speaker appointed a
House select committee on mental health in 2015 to take a comprehensive look at the issue
and report back to the legislature. A select committee may include members from one or both
chambers, and sometimes includes ordinary citizens with special interest or knowledge about
the issue.
Interim Committees Committees that meet between legislative sessions are called
interim committees; they play a crucial role in the Texas Legislature and help to sustain the
biennial legislative cycle. During the 17 to 19 months that the legislature is not in regular or
special session, the state is faced with new challenges and needs, so members who are assigned
to these committees are directed to consider proposed legislation for the next session or to
address new issues that may be facing the state.
Most of the preliminary work on larger, sometimes controversial, bills is done in the
interim, which allows the membership to spend less time on those bills during the legislative
session. Interim committee recommendations on major issues are often critical when they
later get to the floor during the regular session.
The committee structure of the legislature is integral to the consideration of legislation.
The presiding officers select committee members and also decide which committee will be
assigned a particular bill.
The Legislative Process
187
Scheduling
Once it gets out of committee, a bill must be placed on a calendar so that it can be debated,
amended, and voted on by each house.
House Calendars Committees The House of Representatives has two calendars
committees that handle the schedules of all bills that come out of their standing committees:
the House Committee on Calendars and the House Committee on Local and Consent Calendars. These two committees place a bill on any one of the house calendars:
•
•
•
•
•
•
•
Emergency Calendar
Major State Calendar
Constitutional Amendments Calendar
General State Calendar
Local and Consent Calendar
Resolutions Calendar
Congratulatory and Memorial Resolutions Calendar
The calendar schedule includes the time for floor debate and for when the vote on the bill
will occur. The membership must cast their vote for a bill during the time allotted for the
bill vote, so special attention must be paid to the calendars. Resolutions and bills that pertain
to local governments or that can be readily consented to by the membership are placed on
special schedules and are usually disposed of promptly with little debate on the house floor.
The process is not so automatic for major or controversial legislation; when or whether the
legislation will be scheduled on a calendar is a decision largely determined by the speaker and
the House Calendars Committee chair. If the bill is important or urgent, it may be scheduled
on the Emergency Calendar or Major State Calendar, with debate and a preliminary vote
scheduled early in the session.
Senate Calendar Officially the senate has a calendar system that advances bills systematically. A senate rule requires that bills be placed on the calendar and then considered on
the senate floor in the same chronological order in which they were reported from the committees. In practice, bills are taken off the calendar for senate floor consideration by a suspension
of the rule, setting aside the rule that puts bills in chronological order so that other bills can be
considered. This requires a three-fifths majority vote of the senate. The process goes something
like this: The first bill placed on the senate calendar each session is called a blocking bill; it is
usually a bill that will never be considered by the full senate. The blocking bill is never taken
up on the senate floor; its only purpose is to stop floor consideration of any other bills except
by the three-fifths vote to suspend the rule requiring chronological consideration of bills.
Three-Fifths Rule This practice affects the senate’s entire legislative process because it
allows just 13 senators to block a bill. The irony is that although only a simple majority is
necessary for final passage of a bill in the senate, a three-fifths majority is needed to get the
bill to the floor for consideration. The senate can let a bill die without having a floor vote for
or against—it just fails to reach the floor because it is never taken up for consideration.
For 70 years, the senate required a two-thirds vote to take up a bill for consideration. But in
2011, realizing that enough Democrats opposed the proposed voter identification bill to ensure
its defeat, the Republican majority adopted a rule specifically to waive the two-thirds requirement for a bill to require citizens to show state-issued picture identification in order to vote.
Then during the 2015 session, the Republican majority reduced from two-thirds to threefifths the requirement to take up all bills. Now Democrats cannot thwart Republican leaders
on any bill unless they can muster at least 13 senators against taking it up.
suspension of the rule
Setting aside the
rule that puts bills in
chronological order so
that other bills can be
considered.
blocking bill
The first bill placed on
the senate calendar in
each session, which is
usually a bill that will
never be considered
by the full senate.
188
7 The Legislature
Floor Action
Floor action refers to action by the entire House or the entire Senate to debate, amend, and
vote on legislation. To take official action, each house requires a quorum of two-thirds of its
membership to be present. On several occasions, a determined minority opposed to a scheduled action has used quorum-busting tactics by deliberately absenting themselves to deny
their chamber the quorum necessary to proceed on any legislation.
During floor action, the Texas Constitution requires that bills must be “read on three
consecutive days in each house.” The purpose of the requirement was to ensure that laws
would not be passed without adequate opportunity for debate and understanding. Bills are
read once upon being introduced and prior to being assigned to a committee by the presiding officer. In practice, though, the entire bill is seldom read at this time. Instead, a caption
or a brief summary is read to acquaint legislators with the
subject of the bill.
Did You Know? In 1979, Lieutenant GoverThe bill is read the second time in each house; if an
nor Bill Hobby ordered the Texas Rangers to find 12
entire
bill is to be read, it is usually on this second reading.
senators, dubbed the “Killer Bees,” who were hiding
At
this
stage, the bill is debated and amendments may be
out. They were able to successfully deny the Senate
a quorum to pass a split primary bill. During the 2003
added by a simple majority. On the third reading, at least
gerrymandering battle, House Democrats, known as
one day after approval on the second reading, a two-thirds
the “Killer D’s,” fled to Oklahoma to escape the reach
majority is required to add further amendments, but only
of the Texas Rangers; Senate Democrats, known as
a simple majority is required for final passage of the comthe “Texas Eleven,” later took up the cause and fled
pleted bill.
to New Mexico for 46 days. Both groups were able to
control the actions of their respective houses by not
The constitution allows bills that are “cases of imperaallowing a quorum.
tive public necessity,” as so stated in the bill, to be read for
the third time on the same day as floor passage, as long as
four-fifths of the membership agrees. All bills now routinely
contain this provision and usually pass the third reading
immediately following floor passage.
floor action
Action by the entire
House or the entire Senate to debate, amend,
and vote on legislation.
quorum
To take official action,
both houses require
two-thirds of the total
membership to be
present.
Did You Know?
A bill’s general subject and
its supporters may determine how legislators vote. In
1965, for example, 22 members of the Texas House of
Representatives voted against the U.S. Bill of Rights
when it was introduced as “an act to protect our fundamental liberties” by Representative Jake Johnson,
a liberal from San Antonio.
floor leaders
The legislators who are
responsible for getting
legislation passed or
defeated.
point of order
A formal objection that
rules of procedure are
not being followed on
the house floor.
House Floor Action The speaker of the house
presides over all f loor action. The f loor leaders are the
legislators who are responsible for getting legislation
passed or defeated. They stand at the front of the chamber, answer questions, and lead debate on the bill; their
job is to negotiate, bargain, and compromise to either
pass or defeat a bill. Microphones located in the house
chamber are available for other lawmakers who wish to speak or ask questions. Each
representative is allotted 10 minutes to speak; few of them utilize this limited privilege
because most representatives have decided how they are going to vote on bills before
they reach the f loor.
Floor action usually follows a routine, but it can become quite dramatic and debate can
become intense when major legislation is brought up for a vote. Representatives opposing
legislation may bring up points of order requiring rulings by the speaker. A point of order is
a representative’s formal objection that the rules of procedure are not being followed on the
house floor. If the speaker sustains the point of order late in the session, there may not be time
to correct the error, and the bill dies. In 1997, one legislator raised points of order that killed
some 80 bills at the end of the session.
Late in the session, opponents may attempt to delay action on a bill in an effort to run
out the clock on the session. Unlike state senators, representatives do not have the privilege of
unlimited debate, but they have developed other strategies to stop legislative action on a bill
that they do not want to come up for a vote. For example, knowing that a bill they oppose
The Legislative Process
is scheduled to come up for debate, opponents may engage in chubbing, which slows down
the whole legislative process (see Image 7.5). Chubbing includes debating earlier bills for the
maximum allotted time, asking the bill’s sponsor trivial questions, and proposing so many
amendments and raising so many points of order that the house does not get around to the
bill to which they object—the ultimate goal being that the session ends before the bill can
reach the floor for a vote.
chubbing
Slowing the legislative
process by debating
earlier bills for the
maximum allotted
time, asking the bill’s
sponsor trivial questions, and proposing
so many amendments
and raising so many
points of order that the
house does not get
around to the bill to
which they ultimately
object.
IMAGE 7.5 Representative Terry Canales tweets from the House floor in the
Screen Shot
midst of chubbing during the penultimate day of the 2015 session for the second
reading of a bill to take place. Democrats had been chubbing on bills like HB 1798
in order to kill a bill that was further down the calendar (HB 4105) that would have
forbidden the state government or local governments from using public funds to
issue same-sex marriage licenses. Opponents of HB 4105 were successful as the
clock struck midnight on May 14 before it could be voted upon, but their chubbing
resulted in dozens of other bills that were a high priority for many legislators also
dying along with it, hence the smell of dead bills and desperation among legislators
to which Canales refers.
★ CTQ
How does the short legislative session empower legislators willing
to employ delaying tactics such as chubbing?
189
voice vote
An oral vote that is
not put in the official
record.
recorded votes
To vote, house members insert ID cards that allow them to push buttons to record an “yea,”
On final bill passage,
“nay,” or “present” vote on a large electronic scoreboard. The vote each representative makes
votes and the names
is visible as green, red, and white lights next to each legislator’s name. In the past, lawmakers
of those casting them
are recorded in each
decided many bills by voice vote only, casting an oral vote that was not recorded in the offihouse’s journal.
cial record. Casting oral votes did not provide constituents
with a way to know how lawmakers voted on bills because
their votes were not recorded. A state constitutional amendDid You Know? Legislators sometimes
ment finally ended this practice by requiring recorded votes
allow other legislators to vote for them, although the
at least on a bill’s final passage; members’ votes must now be
process is illegal. Sometimes it even appears that
entered into the official record of each house.
ghosts can come back and vote on bills. On August 7,
Senate Floor Action In the Texas Senate, all floor
action is presided over by the lieutenant governor. Because
most bills that come up for a vote in the senate are voted
1991, three votes were cast on Representative Larry
Evans’s electronic voting machine on the House floor
after his death!
7 The Legislature
off of the calendar by a three-fifths vote, it
IMAGE 7.6 Representative Jim Keffer
usually means that the bill has already been
urges a “yea” vote on the floor of the
filibuster
considered and very little debate is needed.
Texas House of Representatives. The
A prolonged debate
Only rarely does a senator opposing a bill
electronic tote board in the background
by a senator to delay
is used to tally votes. Floor debate
resort
to
a
filibuster—a
prolonged
debate
to
passage of a bill.
rarely determines how legislators
delay passage of a bill—on the senate floor.
will vote on a major bill—they usually
Senators may use a filibuster either to attract
decide how they will vote long before
public attention to a bill that is sure to pass
the bill reaches the floor.
without the filibuster or to delay legislation
in the closing days of the session. In fact, just
the threat of a filibuster late in the session
may be enough to force a bill’s supporters to
change the content of the bill to reach a compromise with the dissatisfied senator.
If a filibuster does occur, it means it was
impossible to reach a compromise or that the
bill’s supporters refused to be intimidated
by the threat of a filibuster. Democratic
Senator Wendy Davis from Fort Worth
used the filibuster to protest the billions of
dollars in spending cuts to public education
committee of the
that resulted from the 82nd Legislative Seswhole
sion. The filibuster forced former Governor
The entire 31-member
Rick Perry to call a special session to address
senate acting as a
committee.
education spending. Known for filibusters,
Senator Davis later conducted a filibuster
conference committee
of legislation to restrict abortions and again
A temporary comforced a special session that gained nationmittee that meets to
resolve differences
wide attention.
between Senate and
The entire 31-member senate may act
★ CTQ What political factors
House versions of a
affect legislators’ decias a committee called a committee of the
bill; a separate confersions to support or oppose
ence committee is
whole, which helps to speed up the process
legislation?
appointed for each
for bills to be considered or voted on. The
bill with differences
lieutenant governor appoints a senator to
between the House
and Senate versions.
preside over the 31-member committee, and only a simple majority rather than the usual
three-fifths is necessary to consider legislation. The lieutenant governor may debate and vote
on all questions, but otherwise the senate rules are observed.
No journal is kept of the proceedings.
Did You Know? Former Texas Senator Bill
Usually after a modest amount of debate, the Texas SenMeier set the world record for a filibuster in May
ate takes a vote without the benefit of an electronic score1977 by talking for 43 hours, breaking Senator Mike
board. Senators hold up a single finger to vote “yea” and
McKool’s old record of 42 hours and 33 minutes.
two fingers to vote “nay.” A clerk records the vote, and only
a simple majority is necessary for passage.
Conference Committees
Often the House and Senate pass differing versions of the same bill and a temporary
conference committee must be appointed to resolve differences between the two versions.
Conference committees are made up of five senators and five representatives, and a separate
conference committee is appointed for every piece of legislation that passes both houses in
differing form.
AP Images/Harry Cabluck
190
The Legislative Process
To reach the f loor for a final vote, a compromise proposal must receive a favorable
vote of a majority of the committee members from each house to be reported out of
the committee and back to the f loor as the conference committee report. If a conference committee cannot resolve conf licts between the House and Senate versions of a
bill, it is not likely to go back to the f loor for a final vote nor to reach the governor for
signature.
After a bill has been reported from the conference committee, it may not be amended by
either house but must be accepted or rejected as it is written or sent back to the conference
committee for further work. In practice, because of the volume of legislation that must be
considered in the limited time available, the Texas Legislature tends to accept the conference
committee compromise between the House and Senate versions of a bill, and final passage is
by a simple majority of both houses.
How a Bill Becomes a Law
Figure 7.6 shows the basic steps the Texas Legislature uses to pass legislation. This illustration follows a bill that is first introduced in the House, such as the state appropriations bill,
FIGURE 7.6 How a Bill Becomes a Law
The basic legislative steps are introduction, standing committee consideration, scheduling, and floor debate in each house. This diagram takes the appropriations bill (HB 1)
through the legislature from introduction in the Texas House to signing by the governor. Other bills may originate in the Texas Senate and follow similar steps to passage.
House
Senate
1
Introduced
as HB1
6
Introduced
as HB1
2
Assigned to
Committee
7
Assigned to
Committee
3
Committee
Action
8
Committee
Action
4
Calendar
9
Calendar
5
House Floor
Action
10
Senate Floor
Action
12
Final
Passage
12
Final
Passage
Subcommittee
11
13
★ CTQ
Subcommittee
Conference Committee
Action of the Governor
Explain the role of the presiding officers as a bill works its way
through the legislative process.
© 2018 Cengage Learning
191
conference committee report
A compromise
between the House
and Senate versions
of a bill reached by a
conference committee
and then delivered to
each house.
192
7 The Legislature
but remember that many bills also originate in the Senate. The numbers in Figure 7.6 correspond to the numbers in the discussion.
1. Introduction to the Texas House. Only a representative may introduce a bill in the House,
and only a senator may do so in the Senate. Sometimes a senator and a representative
agree to introduce the same bill in each of their respective chambers to speed the process.
Introduction is followed by a simple reading of the title or synopsis of the bill so that it
can be entered into the record; this is considered the first reading of the bill. The first
bill introduced in the House of Representatives is the state appropriations bill, designated
HB 1. As discussed previously, any bill introduced in the Senate would be given a number
reflecting its origin in the Senate (for example, Senate Bill 13, or SB 13).
2. Assignment to a committee. The speaker assigns bills to committees in the House based on
their content. Naturally, the appropriations bill is assigned to the House Appropriations
Committee. The speaker sometimes has flexibility as to which committee will initially
review a bill because several committees have overlapping jurisdiction. In that case, the
speaker can frequently determine the fate of the bill by sending it to a committee that
will handle the bill the way he wants. If he supports the bill, the speaker will refer it to a
committee that will send a favorable report to the floor; if the speaker opposes the bill,
he will send it to a committee that will pigeonhole the bill, and it will not reach the floor
for a vote.
3. House committee action. As noted earlier, committees are often called “little legislatures”
because of the power they have over bills. In both the committee and the subcommittee, witnesses who support or oppose the bill may be allowed to testify. Witnesses may
be lobbyists, concerned citizens, or bureaucrats who may be affected by the bill. The
subcommittee then marks up the bill with changes and sends it to the committee,
where it may be further marked up. The Appropriations Committee has subcommittees
to initially consider the bill, but most House committees do not use subcommittees; in
that case, the entire committee initially hears testimony and marks up the bill. Committees may then report on the bill favorably or unfavorably or may refuse to report on
it at all.
4. House calendars. A bill that is reported favorably by the committee is placed on one of the
house calendars by one of the calendars committees. This establishes the approximate
order in which the whole House will consider the legislation.
5. House floor. The speaker of the house has the power to recognize representatives on the
House floor and also to interpret the rules and points of order. The representative who
sponsored the bill reads the bill before debate or voting begins. The size of the House
necessitates that debate be more limited than in the Senate—usually 10 minutes for each
member. Bills may be amended, tabled (indefinitely postponed), voted down, or sent back
to committee. “Yea” votes of only a simple majority of members present and voting are
necessary for a bill to be passed.
6. Introduction to the Texas Senate. After the House passes a bill, the bill is sent to the Senate
but still carries the number assigned by the House (HB 1). Likewise, bills that have been
first passed by the Senate will be sent to the House for consideration.
7. Assignment to a committee. The lieutenant governor assigns each bill to a Senate committee; deciding which committee considers a bill frequently determines its fate.
8. Senate committee action. After committee assignment, the bill may be assigned to a subcommittee, which may want to hold public hearings and have witnesses testify. The subcommittee and then the whole committee may amend, totally rewrite, pigeonhole, or
report favorably or unfavorably on a bill.
9. Senate calendar. As described earlier, the Senate has only one calendar of bills, which lists
the bills in the order they come out of committee. The Senate calendar is rarely followed.
Applying What You Have Learned about the Texas Legislature
In the usual procedure, a senator makes a motion to suspend the regular calendar order
and consider a proposed bill out of sequence. The lieutenant governor must recognize the
senator who will make the motion and if three-fifths of the senators agree, the bill is ready
for action on the Senate floor.
10. Senate floor. The president of the senate (the lieutenant governor) has the power to recognize senators who wish to speak, to vote in the event of a tie, and to interpret rules and
points of order. At this time, the bill’s sponsor may read the bill in its entirety in the Senate chamber. The Senate then debates the bill, perhaps adding amendments and passing
the bill by a majority vote.
11. Conference committee. If the Senate makes changes in the House-passed version of a bill,
a conference committee is necessary to resolve the differences between the two houses. A
separate conference committee is selected for each bill on which House and Senate versions differ. The conference committee then reports the compromised version.
12. Final passage. The compromised version of the bill is sent first to the chamber where it
originated and then to the other chamber for final approval. The final reading of a bill in
both chambers happens at this time. Both the lieutenant governor and the speaker of the
house must sign the passed version of the bill before it goes to the governor.
13. The governor. The governor has several options concerning an act arriving on his or
her desk. First, the governor may sign it into law. Second, the governor may choose
not to sign, in which case it becomes law in 10 days if the legislature is in session or
in 20 days if the legislature is not in session. Third, the governor may choose to veto
the act, but the veto can be overridden by a two-thirds vote in each house. The governor must either accept or veto the complete act if it does not contain provisions for
appropriating funds. For appropriations acts, the governor may use the line-item veto
to kill any budget item.
The governor often uses the veto late in the legislative session, or within 20 days after
the session has ended, without fear of the legislature’s overriding it because a veto cannot
be overridden in a subsequent session. If the governor signs a bill, it will become law in
90 days—sooner if it has adequate funds for implementation or the legislature has designated
it as emergency legislation. If the act requires the expenditure of funds that have not already
been designated for it, the comptroller of public accounts must certify that adequate revenue
is available for its implementation or a four-fifths majority in each house would be required
to allow deficit spending.
Applying What You Have Learned about the
Texas Legislature
LO 7.5 Apply what you have learned about the Texas Legislature.
You have learned about the general features of the state legislature, but you may feel that it is
an abstraction to discuss short legislative sessions and overworked staff, the steps in the legislative process, and whether legislators consider themselves to be delegates or trustees. So we
asked state Senator José Rodríguez to give you a taste of what it is like to be a state legislator.
After you have read his essay, we will ask you to link theory and actual practice in the Texas
Legislature.
The son of migrant farm workers, Texas state Senator José Rodríguez was the first in his
family to attend college before becoming an attorney. Today he represents Senate District
29 (SD 29), which includes El Paso, Hudspeth, Culberson, Jeff Davis, and Presidio counties
and both urban and rural constituencies along more than 350 miles of the Texas–Mexico
border.
193
194
7 The Legislature
★
POLITICS IN PR ACTICE
On Being a State Legislator: A View from the Inside
by José Rodríguez
State Senator District 29
In early 2014, constituents approached my office with a concern. The El Paso Independent
School District (EPISD), which offered a groundbreaking dual-language program piloted at
several campuses, wanted to expand the program district-wide.
However, there was a potential roadblock. Dual-language programs immerse students in
instruction that is half in one language and half in the other. The experts who designed
the EPISD program determined that the best combination for doing this is with English as
a Second Language–certified teacher for the English-language component and a Bilingual
Education–certified teacher for the Spanish-language portion.
Definitions of dual-language and requirements for teachers of the program are in the state
education code. The Texas Education Agency had combined two parts of the code in 2012,
and in so doing had come up with a new interpretation of the rules; teachers in the Englishlanguage component of the dual-language program were therefore required to be bilingually
certified. This required EPISD and other school districts across the state to apply for an
exception every year in order to maintain their programs.
Over the course of 2014, my office worked with stakeholders—parents, teachers, education
experts, administrators, and the TEA—to come up with a bill that would clarify the rules
and allow EPISD and other districts around the state, representing about 800 schools using
the successful formula, to continue their work.
This is just one example of how legislation comes to my office, how much effort it takes to
work something through the system, and how important it is to have the people engaged with
their government. Legislation can come to us through constituents, advocates, particular
interests, or our own analysis, or a combination of all these.
While there was little to no opposition to this bill, it still took me, my staff, parents, teachers,
and other advocates hundreds of hours of effort to develop the bill. They discussed the issue
in private and organizational meetings, took action by writing letters of support to legislators,
attended committee meetings, held rallies, and spread information through newsletters and
social media.
The most important thing to know about our form of government is that it takes the engagement of the people. It takes hard work by constituents, grassroots and professional advocates,
staff members, and elected officials to keep our democracy functioning. It takes people like you.
During the legislative session, my office is a nonstop stream of visitors. Many are lobbyists,
the professionals who represent various interests, from business to labor and everything in
between. Others are single-issue advocates, and still others are day visitors from around the
world. We receive tourists, school groups, and constituents from our home communities, just
to name a few types of visitor.
The advocates, at least the most effective, enter armed with detailed information about legislation. It must be clear, accurate, and brief. During the 84th Texas Legislature’s regular
Chapter Summary
195
session in 2015, more than 6,500 bills were filed, with about 20 percent passing. Each of those
6,500 bills took hundreds of hours of public and private meetings, research, and, for many of
them, debate in committee and on the House and Senate floors.
I start each day with a binder outlining my schedule (largely committee hearings and meetings) with the backup materials for each item. I review news clips, memos, and other relevant
items. Sometimes the day begins early, and a hearing or meeting starts it off. For my staff, the
day begins with preparing the materials I will need for the day, as well as their own meetings
with other staff, constituents, and stakeholders.
Let’s go back to the dual-language bill, which was filed in the Senate as SB 159 and in the
House as HB 218. Often, bills are filed in both chambers to create options, because bills move
at different speeds through each chamber based on myriad factors. Each bill must be heard
in the committee, and then on the floor, of its respective chamber. If it passes the hurdles of
its originating chamber, it moves to the next, where it goes through the same process—first
a committee vote, and then a full floor vote. In this case, it was the House version of the
bill that moved more quickly, and we were able to guide it through the Senate, where it also
passed.
As a result, EPISD and other districts around the state were relieved of the uncertainty about
who was able to teach their dual-language programs. And many, many Texans were engaged
in the political process along the way. I personally visited with many of them in the Capitol
in 2015, and I expect to see some of them there again in 2017.
Our system is not perfect, but it does demand perfect attendance. Together, we make it work.
1. How does Senator Rodriguez show the difficulty a legislator faces in dealing with detailed
public policy with limited staff during a short legislative session?
2. Would the senator consider himself a delegate or a trustee? Explain.
★ Chapter Summary
LO 7.1 Describe the limits on the Texas Legislature and
evaluate the concept of the “citizen legislature.” Since
the time the Texas Constitution was written, citizens have mistrusted institutions of government, including the state legislature.
As a result, Texans have limited their state legislature to meeting
only once every two years in regular session and not allowed
the legislature to call itself into special session. Regular sessions
are limited to only 140 days, and special sessions can last no
more than 30 days. Legislative salaries are among the lowest in
the nation, and legislative staffs are so restricted that legislators
have become dependent on outside interests for both income and
information.
LO 7.2 Analyze the selection of Texas legislators, their
qualifications, and the impact of campaign financing
and redistricting on elections. Texas representatives must
be U.S. citizens at least 21 years old who have lived in the state
for two years; senators must be U.S. citizens at least 26 years old
with five years of state residence. The Texas Legislature meets in
odd-numbered years for 140 days, and has 31 senators and 150
representatives. The legal requirements to run for the legislature
obscure the fact that most legislators are business or legal professionals and male. The legislature does not mirror the population of Texas as a whole. In addition, a lack of campaign funding
makes it more difficult for the average citizen to be elected to the
legislature.
Politically, most Texas legislators are conservative Republicans with access to major campaign contributors. Districting also
has a significant impact on the kinds of people who are actually
elected to the Texas Legislature. As in most states, Texas legislators have gerrymandered districts to give the majority party a
significant advantage. A few states have handed the process of
redistricting to a nonpartisan commission, and many Texans
would favor this alternative.
196
7 The Legislature
LO 7.3 Analyze the powers of the legislature and its
presiding officers. The state’s bicameral legislature is presided over by the lieutenant governor in the Texas Senate and
the speaker in the House of Representatives. The presiding officers manage floor debate and are able to use their appointive
and procedural powers to control the legislative process. They
appoint the members of the Legislative Budget Board, the Legislative Audit Committee, the Legislative Council, and the Sunset
Advisory Commission, all of which are integral to the legislative
process. They also have control over committee membership in
the legislature and have decision-making powers over how bills
make their way through the committee structure.
LO 7.4 Analyze legislative processes, the committee
structure, and how a bill becomes a law. Any legislator may
propose a piece of legislation, but the idea for much legislation
originates with interest groups or the executive branch. Once
introduced in the House or Senate, the bill is sent to a standing committee for initial review. Committees review proposed
legislation, gather information by holding hearings, and mark
up bills. Before the bill can become law, it must be scheduled for
floor debate. The two houses use differing means to place legislation on the floor for a vote: the Senate uses a three-fifths rule, and
the House uses the calendars. A bill must be passed by a majority
vote before it is sent to the other house, where it follows similar
steps through committee, scheduling, floor debate, and final
vote. The presiding officers may appoint a conference committee
to resolve differences between the House and Senate versions
before a bill is approved and sent to the governor to be signed or
vetoed.
LO 7.5 Apply what you have learned about the Texas
Legislature. You explored what it is like to be a Texas legislator
from the viewpoint of Senator Rodríguez. You examined what the
short legislative session and limited staff means in practice as the
senator deals with the details of public policy, and you evaluated
the senator’s role to determine if he sees himself as a delegate or a
trustee.
Key Terms
ad hoc committee, p. 186
blocking bill, p. 187
bureaucratic oversight,
p. 183
chubbing, p. 189
committee of the whole,
p. 190
concurrent resolution,
p. 182
conference committee,
p. 190
conference committee
report, p. 191
consulting fees, p. 169
cracking, p. 178
delegate type
representative, p. 183
descriptive representation,
p. 173
ex officio, p. 177
filibuster, p. 190
floor action, p. 188
floor leaders, p. 188
gerrymandering, p. 177
incumbent, p. 179
interim committee,
p. 186
joint committee, p. 186
joint resolution, p. 182
legislative redress, p. 184
malapportionment,
p. 177
mark up, p. 185
packing, p. 178
pairing, p. 179
per diem, p. 169
pigeonhole, p. 185
point of order, p. 188
quorum, p. 188
reapportionment, p. 177
recorded votes, p. 189
resolution, p. 182
retainer fees, p. 169
select committee, p. 186
simple resolution, p. 182
single-member district,
p. 174
standing committees,
p. 185
subcommittees, p. 186
suspension of the rule,
p. 187
term limits, p. 167
trustee type representative,
p. 183
voice vote, p. 189
Review Questions
LO 7.1 Describe the limits on the Texas Legislature
and evaluate the concept of the “citizen legislature.”
• What is legislative amateurism, and how does it affect
the legislative process?
• Explain how low salaries, short biennial sessions, and
limited staff are designed to curtail the legislature’s
power. Explain how such limits increase the influence
of interest groups.
LO 7.2 Analyze the selection of Texas legislators, their
qualifications, and the impact of campaign financing
and redistricting on elections.
• What is descriptive representation, and how does the
make up of Texas legislature compare with the state’s
population as a whole?
• What are the formal and informal qualifications for
holding office in the Texas legislature?
• What are the demographic and political factors that
affect who becomes a member of the legislature?
• How does the ability to attract campaign support and
funding relate to who runs for the legislature?
• What are geographic single-member districts?
Explain the process of gerrymandering.
Think Critically and Get Active!
LO 7.3 Analyze the powers of the legislature and its
presiding officers.
• List the powers of the speaker and lieutenant gov-
ernor. Explain how each of their powers is used to
control the legislative process.
197
of leadership, and explain how state agencies are
affected by them.
• Describe the types of legislative committees, and
explain their function in the legislative process.
• How are the legislature’s presiding officers selected?
LO 7.4 Analyze legislative processes, the committee
structure, and how a bill becomes a law.
• Explain the legislative processes of passing bills
• Describe step by step how a bill is introduced,
What are the limits on their power?
and resolutions, representing constituencies,
exercising bureaucratic oversight, and the power of
impeachment.
• Explain the self-policing power of legislative redress
and Senate confirmation powers.
• Explain the powers of the Legislative Council, the
Legislative Budget Board, the Legislative Audit
Committee, and the Sunset Advisory Commission.
• Explain the role of the speaker and lieutenant gov-
ernor in selecting the members of these institutions
referred to committee, marked up and reported by
committee, scheduled for floor debate, debated, and
voted upon in the Texas House. Then, take a bill
through the same steps in the Texas Senate. Finally,
explain how a compromise is reached between the
House and Senate versions of a bill.
• Show how the presiding officers are able to influ-
ence the legislative process at each of the steps just
described.
• Explain the role of the governor in the legislative
process.
Think Critically and Get Active!
Adopt a bill of your own on a topic in which you have
an interest. Or visit the website of an organization that
you support or admire and choose a bill that they support. Find out which interest groups favored or opposed
your bill. Why did they take the positions they took? Did
your bill pass, or did it not make it out of the legislature?
Where did it stop? What action did the governor take on
the bill?
Start the exercise at Texas Legislature Online at www
.capitol.state.tx.us and click on “Legislation.” You will
also find help at the Legislative Reference Library website
at www.lrl.state.tx.us. Information about the governor’s role
and other topics can be found at www.gov.texas.gov.
Become a legislative intern for the Texas Legislature. Contact a member of the Texas House or Senate
about internship opportunities. For a listing of Texas
House members, check www.house.state.tx.us; for a
listing of Texas Senate members, check www.senate.
state.tx.us. To locate your representative and senator, as
well as representatives and senators from nearby districts,
visit www.fyi.legis.state.tx.us. You can also get in touch
with your college or university, which may have its own
legislative internship program.
Find out how interest groups rate your legislators.
Interest groups rate legislators’ votes on major public
policy issues. Pick interest groups that share your policy views, and see how they rate Texas legislators. Vote
Smart at www.votesmart.org/interest-groups/TX is a
comprehensive site that links to such interest groups as
business, environmental organizations, civil rights organizations, right-to-life groups, and gun rights groups.
Interest groups provide a vital public service by keeping
track of major legislative issues of which many ordinary
citizens are not aware.
Texas was the first state to adopt official Twitter hashtags. Stay current with legislation and legislators by using the Texas Legislature’s official hashtag,
#txlege. For a list of all of the Texas legislators who
are on Twitter, visit www.lrl.state.tx.us/legeLeaders/
members/twitterDirectory.cfm. Keep in mind that
some legislators are very active on Twitter while others
are not.
★ PRQ
How can you use various interest
group ratings of legislators’ votes to
help you determine how you will cast
your ballot on election day?
8
The Executive
Texans elected Republican Greg Abbott as the state’s governor. In this chapter, you will evaluate the governor’s powers
and whether the state’s executive branch is truly accountable to you and other voters.
Fort Worth Star-Telegram/MCT/Getty Images
Learning Objectives
LO 8.1 Describe the governor’s office and the characteristics of the typical Texas governor.
LO 8.2 Analyze both the governor’s powers of persuasion and the limits on them.
LO 8.3 Analyze the structure and characteristics of the Texas bureaucracy.
LO 8.4 Analyze the political relationships among executive agencies, the public, interest groups,
and elected officials.
LO 8.5 Evaluate strategies for holding state agencies accountable.
LO 8.6 Apply what you have learned about the Texas executive branch.
The Governor’s Office: Qualifications, Tenure, and Staff
A
lthough the Texas Constitution designates the governor as chief executive, the executive
branch is separated into various offices and agencies that are often beyond the governor’s
effective control. The division of Texas executive power is largely based on the Jacksonian
democratic theory that most major officeholders should be elected. The legislature has somewhat strengthened the governor’s administrative influence over several agencies, but powerful
special interest groups, bureaucrats, the legislative leadership, and the public generally prefer
a decentralized government and a weak chief executive. As a result, the Texas administrative
structure will continue to be a hodgepodge of administratively independent entities, with no
single official formally responsible for either policy initiation or implementation.
The lack of administrative authority does not mean the governor’s office lacks the potential
for meaningful political power. An astute, politically savvy governor can exert significant
influence on both legislative and administrative policy by asserting legislative powers, managing media coverage, using party influence, and strategically appointing allies to boards,
commissions, and the judiciary.
Long tenure and solid interest group support are also important factors in a governor’s
influence. A long-serving governor with the support of powerful interest groups can wield
significant influence over the enactment and implementation of public policy in Texas. To be
most effective, a governor must have appointed most members of administrative boards and
commissions, convinced legislators that he or she will punish errant behavior, and won the
support of powerful political and financial special interests.
The Governor’s Office: Qualifications,
Tenure, and Staff
LO 8.1 Describe the governor’s office and the characteristics of the
typical Texas governor.
To become governor, a candidate must meet formal or legal qualifications as well as informal
requirements that are imposed by the state’s political culture.
Qualifications and Elections
As is usual with elective offices, the legal requirements for becoming governor are minimal:
One must be 30 years of age, an American citizen, and a resident of Texas for five consecutive
years prior to running for election. Whereas the formal qualifications for governor are easily
met, the informal criteria are more selective.
Ethnicity and Gender Since the Texas Revolution, all governors have been Anglos,
and historically most governors have been males. The only female governor of Texas before
Ann Richards (1991–1995) was Miriam A. Ferguson, who served for two nonconsecutive
terms (1925–1927 and 1933–1935). She ran on the slogan “Two Governors for the Price of
One” and did not really represent a deviation from male dominance in Texas politics, for it
was clear that her husband, former Governor James E. Ferguson (who had been impeached
in 1917 and banned from holding public office), exercised the power of the office. In reality,
Governor Richards was the first truly independent woman to serve as Texas’s chief executive.
Career The typical governor will usually be successful in business or law; in fact, more
than one-half of the governors who have served since 1900 have been lawyers. The governor
will probably have a record of elective public service in state government or some other source
of name recognition.
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200
8 The Executive
Did you Know? Greg Abbott is the first
practicing Roman Catholic to be elected governor of
Texas.
Today a Republican Texas was a solidly Democratic state following Reconstruction. This solid support
began to deteriorate in the 1960s, and the state’s first Republican governor in more than a hundred years, Bill Clements,
was elected in 1978 and again in 1986, after having lost
his 1982 reelection bid. Since 1996, Republicans have won
129 straight statewide elections, including six consecutive
gubernatorial elections.
The Nomination The Republican primary has in recent years become a joust between
business-oriented centrist conservative candidates and tea party or movement conservative
candidates, with the more conservative candidates often winning. Once the election cycle’s
marquee event, featuring a battle between the party’s conservative and progressive wings, the
Democratic gubernatorial primary has lost much of its luster over the past two decades as
conservative Texans largely migrated to the Republican Party in state elections. While there is
never a shortage of talented Republicans who covet their party’s nomination, the Democratic
Party has in recent election cycles at times had a difficult time recruiting a top-tier gubernatorial candidate.
Well-Funded Campaigns Money is a critical factor in any serious campaign for
Texas governor. Although the candidate who spends the most does not always win the office,
a hefty bankroll is necessary for serious consideration. Texas is a populous and geographically vast state, with 20 separate media markets, including two among the top 10 in the
nation (Dallas–Fort Worth and Houston) and two others among the top 40 (San Antonio
and Austin) where advertizing is expensive. Republican Greg Abbott’s campaign spent $49.5
million while Democrat Wendy Davis’s campaign spent $46.8 million to reach Texas voters
in their 2014 campaigns.
Tenure, Removal, Succession, and Compensation
impeachment
Bringing formal
charges against a
public official; the
legislative equivalent
of indictment for
improper conduct in
office.
As in 47 other states, Texas governors serve a four-year term. Unlike most states, however,
there is no limit on the number of terms that a governor may serve (see How Does Texas
Compare). For example, former Governor Rick Perry assumed office on December 21, 2000,
replacing Governor George W. Bush, who resigned following his election as the 43rd president of the United States. Perry would go on to win gubernatorial elections in 2002, 2006,
and 2010 before opting not to seek reelection in 2014. He left office on January 20, 2015,
after having been governor for a state record of 14 years and one month. Prior to Perry’s tenure
as governor, the record consecutive tenure in office was seven years and six months by Allan
Shivers between 1949 and 1957 (before 1974 governors were elected for two-year terms).
The governor may be removed from office only by impeachment by the House of Representatives and conviction by the Senate. Impeachment is bringing formal charges against
a public official; it is the legislative equivalent of indictment for improper conduct in office
and requires only a simple majority vote. Conviction by the Senate removes the official from
office and requires a two-thirds majority.
If the governor is impeached and convicted, dies, or resigns, the lieutenant governor
becomes governor and the Texas Senate then elects one of its members to serve as the acting lieutenant governor until the next election. This process took place most recently in
2000 when Governor Bush was elected president. Following Bush’s resignation, Lieutenant
Governor Perry became governor and state senator Bill Ratliff was chosen by his colleagues
to serve as the acting lieutenant governor.
The Governor’s Office: Qualifications, Tenure, and Staff
201
Compensation The governor’s annual salary is set by the legislature. At present, it is
$153,750 and stands in marked contrast to the low salaries paid to legislators. Though the
governor’s salary is in the top quartile nationally, many elected and unelected State of Texas
officials earn noticeably more than the governor.
In addition to the Texas Governor’s Mansion, which
serves as the official residence for the governor and his or
Did you Know? The Texas Governor’s
her family, there is an expense account to keep the residence
Mansion is the fourth oldest continuously occupied
maintained and staffed. The governor also has a profesgovernor’s residence in the country and the oldest
sional staff and security detail with offices in the capitol
governor’s mansion west of the Mississippi, having
served as the official residence since 1856.
building and in the mansion. An adequate staff is important
because the modern chief executive depends heavily on staff
to carry out the duties of office.
Staff
The governor’s increasing involvement in legislative affairs and the public’s growing demands
have intensified pressure on the chief executive’s time and resources. The Texas governor,
like all executives in modern government, depends on others for advice, information, and
assistance when making decisions. A good staff is a key ingredient for successful service as
governor.
Evaluating Appointees Among the most important concerns of the governor’s
staff are political appointments. Each year, the governor makes several hundred appointments to various boards, commissions, and executive agencies. The executive also fills newly
created judicial offices and those vacated because of death or resignation. Staff evaluation of
potential appointees is necessary because the governor may not personally know many of the
individuals under consideration.
Legislative Liaisons Legislative assistants serve as liaisons between the office of the
governor and the legislature. Their job is to stay in contact with key legislators, committee
chairs, and the legislative leadership. These assistants are, in practice, the governor’s lobbyists. They keep legislators informed and attempt to persuade them to support the governor’s
position on legislation. Often the success of the governor’s legislative program rests on the
staff’s abilities and political expertise.
Budget Preparation Some administrative assistants head executive offices that
compile and write budget recommendations and manage and coordinate budget activities
within the governor’s office.
Communications and Scheduling Staff members manage the governor’s relations with the media and public, responding to requests for interviews, distributing press
releases, arranging press conferences, and maintaining the governor’s presence on social
media. Staff members also exercise administrative control over the governor’s schedule of
ceremonial and official duties.
Planning The governor is the official planning officer for the state, although coordination and participation by affected state agencies are voluntary. The planning divisions also
help coordinate local and regional planning between the councils of governments in an effort
to bring the work of these jurisdictions into harmony with state goals. In addition, national
and state funds are available through the governor’s office to local units of government for
comprehensive planning.
202
8 The Executive
How Does Texas Compare?
replacing Governor Bush in 2000 and then winning three
consecutive elections. Some argue an incumbent governor enjoys too many electoral advantages, such as name
recognition, media coverage, fund-raising ability, and patronage, to be allowed to seek unlimited reelection. They
argue that unlimited terms allow governors to gain too
much power as they become too cozy with interest groups
and too insulated from the needs of the general public.
Others argue term limits deprive voters of the ability to
keep a governor they support in office, and that if voters
believe a governor is not doing a good job they will cast
him or her out at the next election. Opponents of term
limits also argue that experience in office gives elected
officials a deeper understanding of public policy and the
needs of the general public.
Governors’ Term and Term Limits
New Hampshire and Vermont elect their governors for
two-year terms. While governors of the other 48 states
serve for four-year terms, most states limit the number of
terms they may serve. Many of them limit the governor
to two consecutive terms in office but allow a former
governor to seek reelection after sitting out one term. In
some states, the governor may seek reelection once but
may not serve more than two terms over a 12- or 16-year
period. A few states impose a lifetime limit of two terms;
the governor of Virginia may not serve consecutive terms
but may seek the office again after sitting out one term.
Texas is one of only 14 states that do not limit the
number of terms its governor may serve. Former Texas
Governor Perry was in office for more than 14 years after
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
WY
NV
CA
IA
NE
UT
IL
CO
KS
AZ
NY
MI
MO
OH
WV
CT
NJ
RI
DE
MD
NC
TN
AR
SC
MS
TX
VA
KY
OK
NM
IN
PA
NH
MA
AL
GA
LA
AK
FL
HI
No Term Limits
Two Consecutive Terms Limit
Two Terms Within 12 or 16 Years
Two Lifetime Terms Limit (8 states)
One Consecutive Term Limit (1 state)
FIGURE 8.1 Gubernatorial Term Limits: How Texas Compares
Ballotpedia: The Encyclopedia of American Politics.
FOR DEBATE
★ CTQ
Should Texas place limits on gubernatorial reelection like a majority of the
other states, or should it trust voters
to reelect the governor as many times
as they wish?
★ CTQ
If Texas were to place some type of
limit on gubernatorial reelection, what
type of limit among those used by the
other states do you think would be
best for Texas?
The Governor’s Powers of Persuasion
203
The governor’s staff is primarily responsible for assisting with the everyday duties of the
office but can also play a critical role in attempts to persuade legislators, administrators, local
governments, and political leaders to follow the governor’s leadership.
The Governor’s Powers of Persuasion
LO 8.2 Analyze both the governor’s powers of persuasion and the limits
on them.
The governor’s ability to influence the making and executing of government policy depends
on his or her bargaining skills, persuasiveness, and ability to broker effectively between competing interests—the tools of persuasion. These are informal, or extralegal, powers of the
office not stated in rules, law, or the constitution but are largely derived from the formal,
or legal, powers that are stated in the law or the constitution. They are as important as the
legal powers, and the governor’s ability to use informal power can determine his or her effectiveness. Compared to governors of other states (especially other populous, industrialized
states), the governor of Texas has weak formal administrative powers. However, some Texas
governors have been able to exert substantial influence on policy formulation and even on
policy execution when the formal and informal powers are enhanced by a fortunate blending
of other conditions, such as a charismatic personality, political expertise, prestige, a knack for
public relations and political gamesmanship, good relations with the press, supporters with
political and economic strength, a favorable political climate, and simple good luck.
The Governor as Chief of State
The governor, as the first citizen of Texas, serves as a symbol of Texas as surely as the bluebonnet or the Alamo. A significant part of the governor’s job is related to the pomp and ceremony
of the office. These ceremonial duties include greeting Girl Scout troops at the state capitol,
appearing at major sporting events, visiting disaster areas, riding in parades, and attending
county fairs and local festivals throughout the state.
This ceremonial role is important because it can contribute indirectly to the governor’s
leadership effectiveness through increased popularity and prestige. The governor also broadens the image as first citizen to that of the first family of Texas whenever possible; voters
identify with the governor’s family, so the governor’s spouse is often included in the visual
enactment of the office.
International Function The governor performs ceremonial duties and represents
the state at meetings with foreign officials and other governors. She or he also serves as a
member of (or appoints representatives to) numerous multistate organizations and conferences that work to coordinate relations between Texas and other state governments. These
conferences deal with civil defense, nuclear energy, and other important matters. It is also the
governor’s responsibility to ask other states to extradite fugitives from Texas law and to grant
or refuse like requests from other states.
Federal–State Relations In order to facilitate the governor’s job of coordinating
the activities of state agencies and local governments with the national grant-in-aid programs,
the Texas government has established an office in the nation’s capital, the Texas Office of
State–Federal Relations (OSFR). The governor appoints (and may remove) the director of
this office. “Our person in Washington” tries to keep current on the numerous federal aid
programs and grants that might be available to state agencies or local governments. The
director also serves as spokesperson for state agencies and local governments when their ideas
and points of view differ from those held by the federal government.
informal (extralegal)
powers
Powers that are not
stated in rules, law, or
a constitution but are
usually derived from
formal or legal powers.
formal (legal) powers
Powers that are stated
in the law or the
constitution.
204
8 The Executive
The governor may request federal aid when the state has suffered a disaster, a drought, or
an economic calamity. As chief of state, the governor often flies over or visits a disaster area to
make a personal assessment of the damage—and also to show the victims that the governor is
concerned for their welfare. Then, as a “voice of the people,” the governor may make a highly
publicized request for federal aid to the area.
Governor as Party Chief
Although there are varying degrees of competition from other elected officials and from
political activists, governors usually maintain the de facto leadership of their political party
by virtue of their position as the state’s chief executive. The governor’s explicit or implicit support is highly valued by legislators seeking reelection and by politicians aspiring to statewide,
legislative, judicial, or local office.
National Party Leader The Texas governor can also be a leader in national politics
if so inclined. Unless the Texas governor experiences serious public relations problems, any
candidate from the governor’s party who seeks the nomination for president would want the
support of the governor of the nation’s second most populous state. During the administration
of President Barack Obama (2009–2017) the Texas governor assumed an even more prominent
role than usual, as the most visible and influential Republican chief executive in the country.
Positions on National Issues National politics also affords the governor an oppor-
tunity to build a firm, clear image for the people back home. The governor can take positions
on political issues that do not involve the Texas government and over which the governor has no
direct control but with which people can easily identify, such as foreign policy or national defense.
Legislative Tools of Persuasion
Ironically, the most influential bargaining tools that the Texas governor has are legislative.
The governor must use these tools effectively in order to be successful in office.
Message Power As a constitutional requirement, the governor must deliver a State of
message power
The constitutional
power to deliver the
State of the State
message and special messages to the
legislature.
the State message at the beginning of each regular legislative session. This message includes
the outline for the governor’s legislative program. Throughout the session, the governor may
also submit messages calling for action on individual items of legislation. The receptiveness of
the legislature to the various messages is influenced by the governor’s popularity, the amount
of favorable public opinion generated for the proposals, and the governor’s political expertise.
The message power to deliver the State of the State message and special messages to
the legislature derives from the state constitution, but this formal power of the governor is
enhanced by the visibility of the office. Through the judicious use of the mass media (an
informal power), the governor can focus public attention on a bill when it might otherwise be
buried in the legislative morass. An effective governor, however, “goes to the people” only for
the legislation considered most vital to the interest of the state or to the governor’s political
and financial supporters.
Emergency Item The regular session of the Texas Legislature takes place every two
years between January and late May/early June for a total of 140 days. The legislature can
usually hold a floor debate and vote on a bill during the first 60 days of the regular session
only if the governor has declared it to be an emergency item.1 As a result, the governor often
sets the legislative agenda at the start of the session when a bill will face less competition for
time and attention; he or she is able call public attention to certain issues and signal which
topics should be given highest priority that year.
The Governor’s Powers of Persuasion
205
Eric Gay/AP Images
IMAGE 8.1 The governor delivered his 2015 State of the State address to
the legislature to the approval of its presiding officers. The governor’s influence
depends on interest group support, party loyalty, and the popularity of his agenda
with the general public.
★ CTQ
What specific formal powers does the governor use to persuade the
legislature to adopt his or her proposals?
Budget Powers The governor is designated as the chief budget officer of the state.
Every other year, the various agencies and institutions submit their appropriation requests
to the governor’s staff and to the staff of the Legislative Budget Board. Working from these
estimates, the governor and staff prepare a budget that is determined by both the state’s estimated income and the estimated cost of program proposals. When completed, the budget is
submitted to the legislature.
Veto One of the governor’s most powerful formal legislative tools is the veto, a power that
allows the governor to stop a bill from becoming law. After a bill has passed both houses of
the legislature in identical form, it is sent to the governor. If signed, the bill becomes law;
if the governor vetoes the bill, he or she issues a proclamation such as the one shown in
Image 8.2 and returns it to the legislature with a message stating the reasons for opposition.
The legislature has the constitutional power to override the governor’s veto by a two-thirds
vote, but in practice vetoes are usually final.
Because legislative sessions in Texas are short, many important bills are passed and sent to
the governor in the final days of the regular session. The governor need take no action on the
legislation for 10 days when the legislature is in session (20 days when it is not in session), so
he can often wait until the legislature has adjourned and thereby ensure that a veto will not
be overridden. In fact, it is so difficult to override a veto, that since the end of World War II,
out of 1,228 vetoes, only one has been overridden.2 Thus the veto gives the Texas governor a
strong bargaining position with legislators.
veto
A power that allows
the governor to stop
a bill from becoming
law.
206
8
The Executive
IMAGE 8.2 This is an image of Governor Greg Abbott’s 2015 veto of HB 3511
(discussed in Chapter 6). Governor Abbott explained his objections to the bill saying that he believed it would have weakened the state’s ethics laws governing state
officeholder financial disclosure by creating a “spousal loophole”.
★ CTQ
Why is it so difficult for the legislature to override a veto by the
Texas governor?
The Governor’s Powers of Persuasion
No Pocket Veto The Texas governor lacks the pocket veto that is available to many other
chief executives, including the president of the United States. The pocket veto provides that if the
executive chooses to ignore legislation passed at the end of a session, it dies without ever taking
effect. By contrast, if the Texas governor neither signs nor vetoes a bill, it becomes law. By not signing a bill and allowing it to become law, the governor may register a symbolic protest against the
bill or some of its provisions.
Line-Item Veto The most important single piece of legislation enacted in a legislative ses-
sion is the appropriations bill. If it should be vetoed in its entirety, funds for the operation of the
government would be cut off, and a special session would be necessary. Thus Texas, like most
other states, permits the governor a line-item veto, which allows the governor to veto provisions
related to funding for specific items or projects without killing the entire bill.
If used to its fullest potential, the line-item veto is a very effective legislative tool. Money is
necessary to administer laws; therefore, by vetoing an item or a category of items, the governor
can in effect kill programs or whole classes of programs. Because the appropriations bill is usually passed at the end of the session, the line-item veto is virtually absolute. The governor cannot,
however, reduce the appropriation for a budgetary item, as governors in some other states may.
Threat of a Veto A veto threat is an informal power that enhances the governor’s bargaining power with legislators, enabling the governor to shape the content of legislation while it is
still in the legislature. By threatening a veto while a bill is still being considered by the legislature,
the governor is often able to persuade legislators to reshape the bill to meet the governor’s wishes.
Both the veto and the line-item veto are negative tools that simply kill bills or programs;
they do not let the governor directly shape legislation. However, by threatening to use these
formal powers, the governor can often persuade the legislative supporters of a bill to change
its content or face the prospect of a veto. In this way, a compromise can often be negotiated.
Although the veto itself is a negative, or reactive, power, the veto threat can be used positively,
or proactively, to affect the content of bills during the legislative process.
The threat of a veto can also be used to consolidate lobby support for the governor’s legislative proposals. Lobbyists may offer to support the governor’s position on legislation if the
governor will agree not to veto a particular bill that is considered vital to the interests of their
employers or clients. The governor can thus bargain with both supporters and opponents of
legislation in order to gain political allies.
The governor can also use this powerful informal tool of persuasion to influence bureaucrats. Bureaucrats are very active in the legislative process, often seeking increased funding for
favorite programs and projects or seeking authorization to administer new programs. Because
of this, the governor may be able to influence the administration of existing programs by
threatening to withhold funds or veto bills actively supported by an agency. The agency’s legislative liaison personnel (its lobbyists) may also be encouraged to support the governor’s legislative program in exchange for support (or neutrality) with respect to agency-supported bills.
Special Sessions The constitution gives the governor exclusive power to call the legislature into special session and to determine the legislative subjects to be considered during the
session. The legislature may, however, consider any non-legislative subject, such as confirmation of appointments, resolutions, and impeachment, even if the governor does not include it
in the call. Special sessions are limited to a 30-day duration, but the governor may call them
as often as he or she wants. For example, after Wendy Davis successfully filibustered legislation restricting abortion access in a 2013 special session (as discussed in Chapter 2), Governor
Perry within hours called a second special session in which the legislation easily passed.
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8 The Executive
Often when coalitions of legislators and lobbyists request a special session so that a “critical
issue” can be brought before the legislature, other coalitions of legislators and interests oppose
consideration of the issue and, therefore, oppose calling the special session. Calling a special
session can create a dilemma for the governor, because groups whose priority legislation was
not passed during the regular session can feel slighted if their issue is not among the topics
placed on the special session agenda by the governor.
Because there is seldom any legislation that does not hurt some and help others, the governor has an opportunity to use the special session as a valuable bargaining tool. The governor may or may not call a special session on the basis of some concession or support to be
delivered in the future. The supporters and opponents of legislation may also have to bargain
with the governor over the inclusion or exclusion of specific policy proposals for the special
session. Of course, this position may not be open to negotiation if the governor has strong
feelings about the proposal and is determined to call (or not to call) a special session. If the
governor does think that an issue is critical, the attention of the entire state can be focused on
the proposal during the special session much more effectively than during the regular session.
Fact-Finding Task Forces Governors also appoint task forces, or “blue-ribbon
commissions,” consisting of influential citizens, politicians, and members of concerned special interest groups. Task forces can serve as trial balloons to measure public acceptance of the
proposal or as a means to inform and increase public and interest group support. Task forces
are also commonly used to delay the actual consideration of a political hot potato until it has
cooled and ceases to be a high priority for either the public or the media.
The Governor as Chief Executive
The Texas Constitution charges the governor, as the chief executive, with broad responsibilities. However, it systematically denies the governor the power to meet these responsibilities
through direct executive action. In fact, four other important elective executive offices—lieutenant governor, comptroller of public accounts, attorney general, and commissioner of the
General Land Office—are established in the same section of the constitution and are legally
independent of the governor, thus undermining the governor’s executive authority. Such a
system, in which voters elect several independent executives, is known as a plural executive
system and is illustrated in Figure 8.2.
Other provisions in the constitution further fragment executive power. For example, the constitution establishes the elective Railroad Commission of Texas, and although the State Board of
Education can be either elected or appointed, it too is elected. Moreover, the Texas Legislature,
by statute, has systematically assumed executive functions such as budgeting and auditing. It has
also established an independently elected Commissioner of Agriculture, and created a multitude
of boards and commissions to administer state laws that are independent of the governor’s direct
control. Although the members of these commissions usually are appointed by the governor,
their terms are staggered, and it may be several years before the governor’s appointees constitute
a majority of a board or commission. Boards and commissions perform such functions as hiring
and firing agency directors and establishing general agency policies.
Appointive Powers An effective governor will use the power of appointment to the
maximum. The governor appoints some state executives like the secretary of state directly.
When vacancies occur in elected executive and judicial positions, the governor appoints
someone to fill the unexpired term until the next election.
The power to fill vacancies gives the governor some power over the courts. It is not uncommon for judges to retire or resign before the end of their term. The governor is empowered
to fill these vacancies with the appointed judges, who then enjoy the advantages provided by
The Governor’s Powers of Persuasion
209
FIGURE 8.2 The Plural Executive System in Texas
This figure shows that Texas divides executive power as voters separately elect the
governor, lieutenant governor, attorney general, comptroller of public accounts,
commisioner of agriculture, and commissioner of the General Land Office.
Voters Elect
Governor
Gregg
Abbott
★ CTQ
Lieutenant
Governor
Dan Patrick
Attorney
General
Ken
Paxton
Comptroller
of Public
Accounts
Glenn Hegar
Commissioner Commissioner
of Agriculture of the General
Sid Miller
Land Office
George P. Bush
LM Otero/AP Images, AP Photo/LM Otero, Pool, Collin County.gov/Handout/Reuters,
Harry Cabluck/AP Images, LM Otero/AP Images, Stefan Zaklin/Getty Images
The Plural Executive
How can voters hold so many elected officials accountable?
Could power in the executive branch be consolidated? Or is
there an advantage to a plural executive system?
incumbency in the next election, including enhanced name
recognition and fund-raising ability.
Did you Know? During his first year in office,
Governor Greg Abbott appointed 276 people to
Probably the most important appointments that the
boards and commissions and made 12 interim judicial
governor makes are to the independent boards and comappointments in addition to his office staff. Ultimately,
missions. The members of these boards establish general
a governor gets to appoint almost 3,000 people to
administrative and regulatory policy for state agencies or
various positions during the course of a four-year term.
institutions and choose the top administrators to carry out
these policies.
The governor’s ability to affect board policy through
appointments is not immediate, however, as the boards are usually appointed for fixed six-year
staggered terms that expire at two-year intervals. The governor may fill vacancies in an unexpired term, but may not remove a commissioner appointed by a previous governor. Because only
one-third of these positions become vacant every two years (barring the resignation or death of a
board member), a first-term governor will have appointed a majority of most boards only in the
second half of his or her term.Figure 8.3 shows how these overlapping terms limit the governor’s
ability to control the board and commission system and most state agencies.
210
8 The Executive
FIGURE 8.3 Overlapping Terms at the TCEQ
This figure illustrates the effect of staggered terms on the governor’s powers. Board or
commission members serve six-year terms that expire at two-year intervals. The governor
may fill vacancies in an unexpired term, but may not remove a commissioner appointed
by a previous governor. During the first half of his term, Governor Abbott appointed only
one of the three members of the Texas Commission on Environmental Quality and must
get reelected if he is to have the opportunity to appoint all of the commissioners.
Perry Appointees before
January 2015
Abbott Appointees between
January 2015 and 2019
Term 2011–2017
?
Next Term Appointees
After January 2019
Term 2017–2023
Commissioner,
Toby Baker
?
2019–2025
Chair,
Bryan Shaw
Term 2015–2021
?
Commissioner,
Jon Niermann
★ CTQ
Office of the Commissioners
Term 2013–2019
Why does Texas make it so difficult for its chief executive to
control agencies within the executive branch?
Interest Group Concerns Interest groups in Texas are vitally concerned with seeing
that the “right kinds” of appointees are selected to serve on these boards and commissions.
Industry interest groups are particularly eager to have an industry advocate (often an exlobbyist or industry executive) appointed to the board that oversees and sets policy for “their”
agency. Appointment of a consumer advocate could disorient the close relationship that usually exists between an industry and its agency.
There can also be competing interest groups within one industry that may bargain individually with the governor for an appointee who is favorable to their particular viewpoint.
Thus, an appointment to important boards often results in intense lobbying by special interest groups, which conversely gives the governor opportunities to develop support for policies
and to help secure funds for future political campaigns.
senatorial courtesy
The tradition of
allowing a senator to
reject the governor’s
appointment of a political enemy from the
senator’s district.
The Influence of the Senate Senators may also influence appointments from their
districts as a result of senatorial courtesy, which is a tradition allowing a senator to reject the
governor’s appointment of a political enemy from the senator’s district. Other senators show
their courtesy to the disgruntled senator by refusing to confirm the appointment of his or her
political enemy to a board or commission.
The Governor’s Powers of Persuasion
211
Bureaucratic Concerns Administrators want the governor to appoint sympathetic
commissioners who share their goals. Making appointments that are friendly to administrator interests can strengthen a governor’s influence with these administrators.
Removal Powers Although the governor possesses broad appointive power over boards
and commissions, the governor’s powers of removal are limited. He or she may remove members of the executive office and a few minor administrators. The governor may also remove,
for cause and with the consent of two-thirds of the senate, his or her own appointments to
boards and commissions. If the governor decides that an elected official is administering a
law so as to violate its spirit, there is no official way to force a revision of such administrative
interpretation or procedures. In general, the governor cannot issue directives or orders to state
agencies or remove executive officials who do not abide by his or her wishes. Only by focusing
public attention on the agency and garnering public support can the governor convince an
administrator to resign.
Law Enforcement Powers The governor has little law enforcement power. Fol-
lowing Texas tradition, the state’s law enforcement power is decentralized at both the state
and local levels.
At the state level, the Texas Rangers and the Texas Highway Patrol Division are responsible
for law enforcement. Both agencies are under the jurisdiction of the director of the Department
of Public Safety (DPS), who is chosen by the Public Safety Commission. The five members
of the Public Safety Commission are appointed by the governor for six-year staggered terms.
At the local level, police functions are under the jurisdiction of county sheriffs and constables (who are elected) and city chiefs of police (who are appointed by city officials). Criminal acts are prosecuted either by elected district or county attorneys or by appointed city
attorneys. The judiciary, which tries and sentences criminals, is elective (except for municipal
judges, who are appointed by city officials).
Military Powers The governor is commander-in-chief of the state militia, which consists of the Texas National Guard and the Texas State Guard. The governor appoints (and can
remove) an adjutant general who exercises administrative control over both units.
The Texas State Guard was established during World War II and serves as a backup organization in the event that the National Guard is called to active duty by the president. It
cannot be called into active duty by the federal government, and its approximately 2,000
members receive no pay unless mobilized by the governor.
The governor may declare an area under martial law (usually after a riot or a natural
disaster) and send units to keep the peace and protect public property. The governor may also
employ the militia, according to Article 4, Section 7, of the Texas Constitution “to execute
the laws of the state, to suppress insurrection, and to repel invasions.” The Texas National
Guard comprises the Texas Army National Guard (19,000 troops) and the Texas Air Guard
(3,000 troops) and is funded primarily by the U.S. government. It is required to meet federal
standards and may be called to active duty by the president. In the event the Texas National
Guard is nationalized, command passes from the governor to the president.
Clemency Powers The 1876 Texas Constitution granted the governor virtually unlimited power to pardon, parole, and grant reprieves to convicted criminals; these
are known as clemency powers. Several governors were very generous with these powers,
resulting in a 1936 constitutional amendment that established the Board of Pardons and
Paroles. Many of the powers that had been held by the governor were transferred to the
board, which grants, revokes, and determines the conditions for parole and makes clemency
clemency powers
The governor’s powers
to pardon, parole, and
grant reprieves to convicted criminals.
212
8
The Executive
recommendations to the governor. However, the governor appoints the board’s members and
can grant less clemency than recommended by the board but not more. Nor can the governor
any longer interfere in the parole process by blocking early releases from prison. The governor
can postpone executions, but only for 30 days.
The Texas Administration
bureaucracy
The part of the
executive branch that
actually administers
government policies
and programs.
LO 8.3 Analyze the structure and characteristics of the Texas bureaucracy.
The Texas administration or bureaucracy is the part of the executive branch that actually
administers government policies and programs. Although nonelected employees handle dayto-day operations of the government, implement government policies, and provide services to
the public, the various divisions of the executive branch are usually headed by a single elected
administrator, an appointed executive, or a multimember board or commission that may be
appointed, elected, or ex officio.
The most distinctive characteristic of the Texas administration, however, is that no one is
really in charge of the administrative apparatus as a whole. As in many other states, the
administration of laws in Texas is fragmented into several elective and numerous appointive
positions. Although the principle of hierarchy exists within each department, the formal
organization of the Texas bureaucracy follows the basic administrative principle of hierarchy
only as far as the elected administrator or appointed board. The Texas bureaucracy can be
visualized as approximately 200 separate entities, each following its own path, often oblivious
to the goals and ambitions of other agencies.
Elected Executives and the Plural Executive System
The constitutional and statutory requirement that several administrators (in addition to the
governor) be elected was a deliberate effort to decentralize administrative power and prevent
any one official from gaining control of the government.
Lieutenant Governor The lieutenant governor is elected for a four-year term, with
no limit on the number of terms that may be served. Although technically part of the
executive branch, most of the lieutenant governor’s power actually comes from serving as
the powerful president of the Texas Senate. In that position, the lieutenant governor is as an
ex officio chair of the Legislative Budget Board and of the Legislative Council. The lieutenant governor is also a member of the Legislative Audit Committee and, if he or she desires,
can exercise considerable personal influence on the Sunset Advisory Commission and the
Legislative Criminal Justice Board. These legislative boards and commissions are not part
of the executive branch, but they can have major influence on it as they conduct continuing
reviews of administrative policies and make recommendations to the legislature.
Attorney General The attorney general is elected for a four-year term, with no limit
attorney general’s
opinion
The attorney general’s
interpretation of the
constitution, statutory
laws, or administrative
rules.
on the number of terms that may be served. Holding one of the four most powerful offices in
Texas government, the attorney general is the lawyer for all officials, boards, and agencies in
state government. The legal functions of the office include assisting in child support enforcement, antitrust actions, Medicaid fraud investigation, crime victim compensation, consumer
protection, and other civil actions concerning insurance, banking, and securities. A broad
spectrum of the state’s business—oil and gas, law enforcement, environmental protection,
highways, transportation, and charitable trusts, to name only a few—is included under the
overall jurisdiction of the attorney general.
The attorney general performs two major functions for the state. One is to give an
attorney general’s opinion, which is an interpretation of the constitution, statutory laws,
213
or administrative rules. As the state’s chief lawyer, the
IMAGE 8.3 Attorney General Ken Paxton was first
attorney general advises his or her client. In the absence
elected in 2014.
of a prior judicial interpretation, the attorney general
has the power to interpret law or to give an opinion as
to whether or not a law or practice conflicts with other
laws or the Texas or U.S. constitutions. Although these
advisory opinions are technically not legally binding,
they carry great weight. If state officials ignore these
opinions, the attorney general will not defend them
in court.
Government officials at all levels may request an
opinion from the attorney general, and although they
are not legally binding, government officials usually follow them. The attorney general’s opinion is normally
requested only after the legal staff of another agency or
official has been unable to reach a decision. The requests
usually concern difficult questions, and several staff
attorneys general consider each question. Only agencies
and officials may request these opinions, and then only
for official business.
A legislator may request an attorney general’s opinion during the legislative session (sometimes merely to
delay, and thus help kill legislation). The vagueness of
laws and, particularly, the ambiguity of the Texas Constitution require the attorney general to give numerous
opinions each year.
The second major function of the attorney general is
to represent the state and its government in both civil
and criminal litigation. This includes conflicts with the
national government, such as those with the Environmental Protection Agency (EPA) over pollution control
and allowing Texas industries to bypass some EPA regulations, with President Obama over his executive order
granting deportation relief to undocumented immi★ CTQ Which are the attorney general’s most
grants, with the Department of Health and Human
important powers? Why?
Services over the implementation of the Affordable Care
Act, and with the Department of Justice over Texas’s
photo ID requirement for voters.
The attorney general also represents Texas in legal conflicts with other states such as
boundary disputes with Louisiana and Oklahoma. The attorney general enforces business
regulations by bringing suits against corporations for antitrust, consumer protection, or other
regulatory violations.
However, the attorney general’s criminal power is relatively narrow because the primary
responsibility for criminal prosecution in Texas lies with the locally elected district and county
attorneys. In fact, in 2015 Attorney General Ken Paxton himself was indicted in a Collin
County district court on two first-degree felony charges of securities fraud and a third-degree
felony charge of failing to register as a financial advisor.
Comptroller of Public Accounts The comptroller (pronounced as controller)
is elected for a four-year term, with no limit on the number of terms that may be served.
The functions of the comptroller’s office encompass either directly or indirectly almost all
AP Images/Harry Cabluck
The Texas Administration
214
8
The Executive
financial activities of state government. The comptroller is
the chief tax collector and the chief pre-audit accounting
officer in the Texas government. The comptroller manages state deposits and investments and pays warrants on
state accounts in his or her capacity as the state’s chief
treasurer. The comptroller also provides information on
spending and debt at the state and local level, supports
state economic development efforts, manages the state’s
college education funds, and coordinates the state’s procurement system.
The comptroller’s most important constitutional duty
is to certify the state’s approximate biennial revenue. The
constitution requires a balanced budget, and the state legislature may not appropriate more funds than are anticipated as income for any two-year period. The comptroller
also certifies the financial condition of the state at the
close of each fiscal year. Any surplus funds can give the
governor and legislature fiscal flexibility for tax cuts or
increased appropriations without increasing taxes.
IMAGE 8.4 Comptroller of Public Accounts
Glenn Hegar is the state’s chief tax collector and
financial officer.
Commissioner of Agriculture The commis-
AP Images/Harry Cabluck
sioner of agriculture is elected for a four-year term, with
no limit on the number of terms that may be served. The
commissioner oversees the Texas Department of Agriculture (TDA). The TDA was created by statute in 1907 and
is responsible for the administration of all laws as well as
research, educational, and regulatory activities relating
to agriculture. The duties of the department range from
checking the accuracy of scanners at grocery stores and
gasoline pumps at service stations (the next time you are
What is the comptroller’s most imporfilling up look for the Texas Department of Agriculture
tant constitutional duty? Explain how
sticker on the pump) to determining labeling procedures
Texas enforces its balanced budget
requirement.
for pesticides and promoting Texas agricultural products
in national and global markets. The commissioner also
administers the Texas Agricultural Finance Authority,
which provides grants and low-interest loans to businesses that produce, process, market, and
export Texas agricultural products.
Like the U.S. Department of Agriculture, the TDA is also charged with administering
laws for both consumer and labor protection. This is a classic example of an agency with
two contradictory constituencies, and at times conflicting interests, being given the function
of protecting each interest from the other. A conflict of interest between these potentially
incompatible groups is almost inevitable.
★ CTQ
Commissioner of the General Land Office The commissioner of the General Land Office is elected for a four-year term, with no limit on the number of terms that
may be served. Principal duties of the commissioner are managing and collecting income
from rentals and leases for state-owned lands; awarding oil, gas, and hard-mineral leases
for exploration and production on state lands; and leasing mineral interests in the state’s
riverbeds and tidelands, including bays, inlets, and offshore areas within 10.35 miles (three
marine leagues) of the Texas coast. The commissioner also enforces the Texas Open Beaches
The Texas Administration
Appointed Executives
Besides the executives that voters directly elect, several
executives are appointed by the governor. In many states,
the governor appoints the heads of most state agencies, but
in Texas only a few agency heads answer directly to the
governor. As shown in Figure 8.4, directly appointed executives are the secretary of state, the adjutant general, the
health and human services commissioner, the insurance
commissioner, and the education commissioner.
IMAGE 8.5 Land Commissioner George P. Bush
manages Texas public lands and beaches.
Pool/Getty Images
Act to insure that the public continues to have free and
unfettered access to Texas beaches, defined as the point
between the water and the normal high tide line.
The land commissioner serves ex officio on several
boards, as is the case with many officials, and chairs the
important Veterans Land and the School Land boards,
whose programs are administered by the General Land
Office. (Ex officio members hold their positions because
they hold some other elective or appointed office.) The
Veterans Land Board was established by a grateful state
after World War II. It loans money to veterans for land
purchases and home purchases or improvements as well as
manages four cemeteries for veterans.
The School Land Board oversees approximately
13 million acres of public land and mineral rights properties, including the Gulf Coast beaches and bays and
“submerged” lands up to 10.35 miles out into the Gulf of
Mexico. The lease and mineral income from these public lands varies with the production and price of oil and
natural gas, but revenues from the leases, rents, and royalties from the public lands are dedicated to the Permanent
School Fund. Interest and dividend income from this fund
are used to assist the state’s public schools.
215
★ CTQ
Why are lower-level executive offices
considered stepping-stones to higher
office? What resources could George
P. Bush bring to a campaign?
Did you Know? George P. Bush’s mother,
Columba Bush (née Garnica Gallo), was born and
raised in the Mexican state of Guanajuato, where she
met his father, former Florida governor Jeb Bush, who
was teaching English there as part of a high school
project.
Secretary of State Appointed by the governor, with confirmation by the senate, the
secretary of state serves at the pleasure of the governor. The secretary is keeper of the Seal of
the State and also serves as chief election officer for Texas, administers Texas’s election laws,
maintains voter registration records, and receives election results. The secretary of state’s
office also serves as a repository for official, business, and commercial records filed with
the office, publishes government rules and regulations, and commissions public notaries.
In recent years, under former Governor Perry and Governor Abbott, the secretary of state
also has served as the governor’s liaison for Texas border and Mexican affairs and represents
Texas at international and diplomatic events as the state’s chief international protocol officer.
Adjutant General Appointed by the governor with the consent of the senate for a
two-year term, the adjutant general is the state’s top-ranking military officer and exercises
administrative jurisdiction over the Texas National Guard and the Texas State Guard.
Health and Human Services Commissioner The executive director of
the Health and Human Services Commission is appointed by the governor with the advice
216
8 The Executive
FIGURE 8.4 Appointed Executives
Although Texas governors share power with several other elected officials, they are designated as the chief executive and have the power to appoint these state executives directly.
Governors also appoint numerous boards and commissions.
Appointed Executives
The Governor Appoints
Secretary
of State
★ CTQ
Adjutant
General
Health and
Human Service
Commissioner
Insurance
Commissioner
Education
Commissioner
Do voters hold governors accountable for the performance
of the officers that they have appointed?
and consent of the senate. The commissioner heads the Texas Health and Human Services
System, an umbrella agency or super-agency that oversees and manages four major health and
welfare departments.
The director of the commission is granted extensive administrative and policy-making
authority over the departments. The power within the commission clearly rests with the director, who reports directly to the governor. The powers of the governor’s office were significantly
increased by the 78th Legislature, moving in the direction of a cabinet-type administrative
format.
Insurance Commissioner The commissioner of the Texas Department of Insurance is directly appointed by the governor for a two-year fixed term, subject to senate confirmation. The department monitors and regulates the Texas insurance industry. It provides
consumer information, monitors corporate solvency, prosecutes violators of insurance law,
licenses agents and investigates complaints against them, develops statistics for rate determination, and regulates specific insurance lines such as property, liability, and life.
Commissioner of Education The commissioner is appointed by the governor
with consent of the senate to serve as the state’s principal executive officer for education.
The commissioner manages the day-to-day operations of the Texas Education Agency. With
a number of assistant and associate commissioners and professional staff, the commissioner
carries out the regulations and policies established by the legislature and the State Board of
Education concerning public school programs.
The Texas Administration
Boards and Commissions
Approximately 200 elected, appointed, or ex officio boards and commissions supervise state
agencies. Their members may be salaried or only reimbursed for expenses. There are also
considerable differences in their political power.
Generally speaking, the most important boards are those concerned with chartering or
regulating the business, industrial, and financial powers within the state. Power is also measured by the number of people affected by the board’s decisions or the size of its agency’s
appropriations. These are only general measures of power, however, because a relatively minor
licensing board such as the Texas Real Estate Commission could be the most important
agency in state government to a real estate broker whose license is about to be revoked.
Elective Boards Elective boards include the Texas Railroad Commission and the
Texas State Board of Education.
Texas Railroad Commission One of the most important state regulatory boards is
the Railroad Commission, a constitutionally authorized elective board whose three members
serve for overlapping six-year terms. The governor fills vacancies on the board, and these
appointees serve until the next general election, at which time they may win election to the
board in their own right.
The board is politically partisan and its members must first win their party’s nomination
before being elected. The chair position is rotated so that each member becomes the chair
during the last two years of his or her term. This forces any candidate who is challenging an
incumbent commissioner to run against the chair of the commission.
The Railroad Commission was established in 1891 during the administration of Governor
Jim Hogg as a populist reform to protect Texas citizens from unfair railroad practices. Its
powers were soon expanded to regulate intrastate wheeled carriers, and in 1917 the oil and
gas pipelines were added, followed soon after by the authority to regulate oil well drilling and
production. The authority to regulate railroads and motor vehicles was gradually stripped
away, and in 1994 the Texas Legislature transferred the commission’s remaining motor and
rail carrier responsibilities to the departments of transportation and public safety.
The commission’s duties today are concerned only with the regulation of natural gas utilities, oil and gas pipelines, oil and gas drilling, and pumping activities. It is also responsible
for regulation of waste disposal by the oil and gas industry and the protection of both surface
and subsurface water supplies from oil- or gas-related residues. Its powers over the petroleum
industry have historically made the Texas Railroad Commission one of the most powerful
state regulatory bodies in the United States.
Texas State Board of Education The State Board of Education (SBOE) is elected
to serve as the policy-making body for Texas public schools. Members of the State Board
of Education are elected in partisan elections to four-year overlapping terms in 15 singlemember districts, and together they establish general policy regarding the content of public
education, set curriculum standards, adopt instructional materials, approve charter schools,
and review rules for teacher certification. The SBOE has been the center of controversy as it
deals with sensitive cultural issues in determining policy for kindergarten through 12th grade
public education. We will examine these controversial policies in depth in Chapter 12.
Appointed Boards Appointed boards vary greatly in terms of importance, administrative power, and salary. The members of these boards, who are usually unsalaried, set the
policies for their agencies and appoint their own chief administrators. The governor, with the
consent of the senate, usually appoints board members, but because of the usual practice of
217
218
8
The Executive
appointing members to staggered terms, up to six years may lapse before a governor fills a
board with his or her appointees.
Board appointees are often representatives of groups that have an economic interest in the
rules and policies of the board. Appointments may be either a reward for political support or
an attempt to balance competing interest groups whose economic well-being is affected by
board rules and policies.
Figure 8.5 uses the example of the Department of Public Safety to show that this kind of
board and commission system means that the governor does not appoint the actual administrator who manages an agency on a day-by-day basis. Such a system adds another layer of
bureaucracy between the elected chief executive and agencies that should be responsible to
the public.
Another example of an appointed board that has become quite powerful in recent
years is the Texas Commission on Environmental Quality (TCEQ). It operates under
three commissioners who are appointed by the governor for six-year overlapping terms.
The commissioners appoint administrators who manage its approximately 2,700 employees. The TCEQ is the primary environmental regulator for the state, overseeing cleanups, permitting industrial plants, and writing rules to govern most aspects of the Texas
environment.
Also among the most important and influential appointed boards are the Texas
Department of Transportation, the Texas Health and Human Services Commission, the
Texas Board of Criminal Justice, the Texas Higher Education Coordinating Board, and
the Texas Water Development Board. In fact, most state agencies are run by appointed
boards and commissions. Table 8.1 provides additional examples of appointed boards
and commissions.
Ex Officio Boards Numerous boards have memberships that are completely or partly
ex officio—that is, boards whose members are automatically assigned because they hold some
other position. There are two basic reasons for creating such boards. One is that when travel
to Austin was expensive and time-consuming, it seemed logical to establish a board whose
members were already in Austin. Another reason is that subject matter expertise on the part
of the ex officio members is assumed.
The Texas Bond Review Board is an example of an ex officio board. It has four ex
officio members: the governor, lieutenant governor, speaker, and comptroller of public
accounts. It reviews and approves all bonds and other long-term debt of state agencies
and universities. It also engages in various other functions pertaining to state and local
long-term debt.
A number of agency boards have some ex officio members. The Texas Appraiser Licensing
and Certification Board (nine members, one ex officio) and the Texas Racing Commission
(nine members, two ex officio) are examples of such boards.
Characteristics of Bureaucracy
Although bureaucracy is often thought of as being exclusive to government, it is also common to churches, colleges, corporations, and foundations. Bureaucracies develop wherever
human beings organize themselves to systematically accomplish goals and in the process lose
some flexibility and efficiency. This discussion concentrates on government bureaucracies,
especially those in Texas government.
Size The complexities of twenty-first-century society, together with increased demands
of government at all levels have resulted in a dramatic increase in the number of people
employed by public agencies. Large bureaucracies have become the target of some scorn from
The Texas Administration
FIGURE 8.5 The Board-and-Commission System
For most state agencies, the governor appoints a supervisory board that, in turn,
appoints the day-to-day director of the agency. Here you see that the governor
appoints the Texas Public Safety Commission that in turn appoints the Director of
Public Safety who actually runs the department.
The Governor
Appoints
Board or Commission
(Public Safety Commission)
Appoints
Texas Department of Public Safety
Agency Director
(Public Safety Director)
★ CTQ
How does this system of boards and commissions add another
layer between the elected governor and the appointed agency
head who actually manages day-to-day state agency operations? Should voters be able to elect a chief executive who
directly appoints those who run state government?
219
220
8
The Executive
IMAGE 8.6 The Texas Commission on Environmental Quality, which enforces air
Natalia Bratslavsky/iStock/Getty Images Plus/Getty Images
quality standards, has resisted implementation of federal Environmental Protection
Agency plans.
★ CTQ
Which Texas industries would have an interest in opposing stricter
environmental standards?
those who have simply lost confidence in our government; some special interest groups, for
their own reasons, criticize public employees as a means of discrediting specific government
programs. There is, however, a legitimate concern that government agencies need to be made
more efficient and accountable to the public.
From time to time, various public officials attempt to systematically streamline both
national and state bureaucracies and to make them more efficient and receptive to the wishes
of policy makers. These attempts may or may not have positive results, but their level of success varies widely and is based largely on the expectations, perceptions, and political ideology
of the reviewer.
privatization
The hiring of private
contractors to perform
government services
and perform government functions.
Privatization One reform designed to streamline bureaucracy has been privatization
which is the hiring of private contractors to perform government services and perform
government functions. Since the 1980s, there has been an increase in privatization
throughout the country as governments have turned to the private sector for a wide range
of services. Texas has privatized some of its prisons and highways and has experimented
with using private companies to determine eligibility for social service programs, and
some people have advocated using publicly-funded vouchers to subsidize private school
attendance.
Conservative, pro-business citizens often support privatization arguing that contracting with private businesses to provide traditional public services both increases
The Texas Administration
TABLE 8.1 Examples of Appointed Boards and Commissions in Texas
This table shows selected examples of the numerous boards and commissions
appointed by the governor that deal with professional licensing and regulation, public
health and welfare, the environment, cultural and educational programs, and industry
regulation. In fact, most state agencies are supervised by such appointed boards.
Professional Licensing and Regulation Boards
Texas Board of Nursing
Texas Board of Professional Geoscientists
Texas Real Estate Commission
Texas State Board of Acupuncture Examiners
Texas State Board of Dental Examiners
Texas State Board of Plumbing Examiners
Texas State Board of Public Accountancy
Public Health and Welfare and Environment
Cancer Prevention and Research Institute of Texas
Texas Commission on Environmental Quality
Texas Commission on Jail Standards
Texas Department of State Health Services
Texas Department of Housing and Community Affairs
Texas Indigent Defense Commission
Texas State Soil and Water Conservation Board
Cultural and Educational
Governing Board for the Texas School for the Blind and Visually Impaired
Texas Commission on the Arts
Texas Higher Education Coordinating Board
Texas Historical Commission
Texas State Library and Archives Commission
Texas State University System Board of Regents
The University of Texas System Board of Regents
Industry Regulation
Finance Commission of Texas
Credit Union Commission
Governing Board for Manufactured Housing
Public Utility Commission of Texas
Texas Alcoholic Beverage Commission
Texas Funeral Service Commission
Texas State Securities Board
 What are the limits on the governor’s power to appoint board members?
221
222
8 The Executive
spoils system
A system in which
elected officials hire
campaign workers as
public employees.
contract spoils, or
contract patronage
A practice in which
politicians award contracts to their political
supporters and contributors in the business community.
★
efficiency and reduces the size, power, and cost of government. They believe that private enterprise is inherently more effective and efficient than the public sector, and that
current agencies lack the forces of the profit motive and competition that energize the
private marketplace.
Skeptics of privatization argue that private businesses are profiteering at the public expense
because they are likely to “cut corners” on services to improve their “bottom line.” Opponents
also contend that private businesses are not accountable to the public because their internal
operations are not as well publicized as government activities.
Opponents suspect that political contacts and campaign contributions “grease the wheels”
for contractors and that a new kind of spoils system is developing. Unlike the historic spoils
system in which elected officials hired campaign workers as public employees, today’s new
spoils system is based on the practice of contract spoils, or contract patronage, in which
politicians award contracts to their political supporters and contributors in the business community. Although the contract patronage system is not new, critics believe that it has become
a major political reason for support of the privatization movement. Critics have dubbed this
practice “crony capitalism.” See the Texas Insiders feature.
Texas Insiders
Privatization: Insider Influence, Cronyism,
and Reform
Texas has begun a partial privatization of state
services, contracting with private firms to do
work that was formerly done by state employees.
Critics have charged that the process has often
become fraught with insider influence, cronyism,
and conflict of interest to the detriment of competent, efficient administration of public services.
In 2005, the Texas Health and Human Services
Commission (HHSC) awarded Accenture and a
team of contractors a $900 million contract to
operate call centers to determine eligibility for
various social services including food stamps.
IBM sued the HHSC over its handling of the
contract, alleging excessive influence by HHSC
chief information officer Gary Gumbert, who
had formerly worked for an Accenture subcontractor and continued to receive a pension from
the company.
Ultimately, Accenture’s mismanagement of the
contract resulted in a backlog of thousands of
food stamp applications at its Austin call center
even as regular state employees continued to do
much of the work that Accenture was responsible
for. After spending $522 million on the program,
HHSC abandoned its contract with the company.
By 2014, the media spotlight was again focused
on HHSC contracting practices. In 2012, HHSC
official Jack Stick awarded a $20 million no-bid
contract for Medicaid fraud-tracking software
to 21st Century Technologies (21CT), a littleknown Austin company. Eyebrows were raised
when it was learned that 21CT lobbyist James
Frinzi had once been Jack Stick’s business
partner and that Stick may have also sought to
arrange a job for himself at 21CT. Investigation
of the original contract as well as scrutiny of
a pending $90 million contract extension with
21CT in 2014 (which was cancelled) led to the
resignation of several HHSC employees, and its
commissioner Kyle Janek later resigned as well.
The 21CT scandal moved the legislature in
2015 to reform the state contracting process by
limiting the size of no-bid contracts, preventing
vendors with poor ratings from competing for
contracts, forbidding state officers from doing
business with companies in which they have a
financial interest, and banning state employees
from taking jobs with companies with which
they have been doing business for at least two
years after leaving state employment.
★ SRQ
Can the state contracting process be
reformed to assure efficient, neutral
management of public services? Or
is the process inevitably subject to
manipulation by elites seeking political and personal gain?
The Texas Administration
Hierarchy All bureaucracies are formally characterized as hierarchies, structures in
which several employees report to a higher administrator who reports to higher authorities
until eventually all report to the single individual with ultimate authority. Theoretically, formal authority and directives flow down through the chain of command to lower levels and
information filters up through channels to the top from lower-level employees in the field.
A framework of rigid rules and regulations formally assigns authority to various levels and
defines the relationship between those individual bureaucrats who are of nearly equal rank.
A model hierarchy is similar to the military chain of command for the U.S. Army. The
president as the commander-in-chief is at the top and outranks the secretary of defense, who
outranks the secretary of the army, who outranks all the generals, who in turn outrank all the
colonels, and so on, down to the new private (E-1) who is outranked by everybody. Actually,
a hierarchy seldom functions according to its organizational chart. Usually, it can be influenced at all levels by legislators, the chief executive, interest groups, and other bureaucrats
regardless of the formal lines of authority.
Although individual units within the Texas government are hierarchically organized, the
state’s bureaucracy is not, because final authority is not centralized in a single executive.
As shown in Figure 8.6, hierarchy is evident within the Texas Department of Transportation, but there are no direct lines of authority and communication from the governor to the
department.
Ironically, the governor is elected by the people to be the chief executive but has little
direct authority over most administrators. However the governor’s authority to appoint the
members of most boards and commissions, together with close personal ties to powerful
special interest groups, makes her or him an important player in shaping the direction of
independent agencies.
223
hierarchies
Structures in which
several employees
report to a higher
administrator who
reports to higher
authorities until eventually all report to the
single individual with
ultimate authority.
Neutrality Administration of the laws in a “neutral” fashion—the separation of politics
and administration—has long been an aim of reformers in American government. Ideally,
elected public officials should establish and define a program’s priorities, goals, or services.
Administrators should then administer the law the “best way” and equally to all, rich or poor,
black or white, powerful or weak, male or female.
The federal government took the lead in bureaucratic reform when it established a strong
civil service (or merit) system, an employment system using competitive examinations or
objective measures of qualifications for hiring and promoting employees. The spoils system—
government employment and promotion based on political support—was replaced by a merit
system.
Many states also adopted a merit system of public employment. However, Texas never
implemented systematic statewide civil service reform; it still depends on a spoils or patronage
system of public employment. Elected officials in Texas appoint major campaign supporters
to top-level positions, which raises the potential for conflicts of interest and has resulted in
criticism of crony capitalism practices in Austin from both the left and the right.
Texas attempted a different way to depoliticize the state bureaucracy by establishing the
independent board and commission system discussed earlier, which tries to insulate the
bureaucracy from the legislature and the governor, who are elected and hence political by
definition. The board appoints a chief executive officer to manage the department and see
to the administration of public policy. Administrative power is thus “removed from politics”
and the governor is denied direct executive control over the state bureaucracy.
Local governments in Texas have attempted to accomplish similar goals by nonpartisan elections for city officials and special district boards. Most cities have also adopted the council–manager
form of government in which an unelected “professional” manager supervises city departments,
and in school districts a “professional” superintendent administers the public schools.
civil service (or merit)
system
An employment system using competitive
examinations or objective measures of qualifications for hiring and
promoting employees.
Travel Publications
Electronic Publishing
Center
Audio Visual
Production
Travel Publications
& Services
Executive
Communications
D/D/O/R
Public Information/
Media Relations
Officers
Chief Communications
Officer
State Legislative
Relations
Public Involvement
Environmental
International
Relations
Pedestrian
& Bicycle
Ports &
Waterways
Rail
Public
Transportation
Aviation
General Services
Occupational
Safety
Right of Way
Chief Programs
Officer Interim
D/D/O/R
Finance
Toll Operations
Innovative
Financing/
Debt Management
Finance
Transportation
Planning &
Programming
Nontraditional
Projects
CDA/PPP
(Turnpike)
Enterprise Project
Management
Bridge
Local
Government
Projects
Design
Construction
Maintenance
Traffic
Deputy Executive
Director/Chief Engineer
Risk
Management Office
Chief Planning &
Project Officer
General Counsel
Grant Management
Chief Financial
Officer
Office of Compliance
& Ethics
Federal Relations
Governmental
Relations Interim
Executive Director
COMMISSION
Regional Support
Centers Lead
Rural Districts
Lead
Urban Districts
Lead
Metro Districts
Lead
Keeping in mind that the governor appoints only the supervisory board of the Texas Department of Transportation, how
can the governor control the day-to-day operations of this agency? In your answer, remember that the governor is also
chief executive of more than 200 state agencies with similar structures, each jealously guarding their bureaucratic turf.
Office of Civil Rights
D/D/O/R
Human Resources
Human Resources
Operational
Excellence
Performance
Excellence
Research &
Technology
Implementation
Chief Human Resources
& Modernization Officer
Texas Department of Transportation.
★ CTQ
IT Project
Management
IT Strategy
IT Customer
Relations
IT Services
IT operations
Chief Information
Officer
Administrative
Services Office
Audit
The organizational plan for the Texas Department of Transportation illustrates the apparent hierarchy in state agencies.
8
FIGURE 8.6 Texas Department of Transportation Organizational Structure
224
The Executive
The Bureaucracy, Politics, and Public Policy
With these safeguards, reformers believed that administrators could and would treat
everyone equally and fairly, simply carrying out the policies of the elected officials. However,
the theory of executive neutrality is naive, for public administration cannot be separated from
politics—it is politics!
Expertise Individual bureaucrats should have an understanding of their jobs and the
effects of their decisions on others. Students of administration have concluded that this
can be accomplished by defining the duties of the job and the limit of its authority. Thus,
individual bureaucrats, through training and experience in specific job classifications,
become experts in specialized areas of administration. Ideally the result will be a more
knowledgeable and efficient administration. Expertise is also a major source of bureaucratic power.
A power inherent in any professional bureaucracy stems from administrators’ ability to
shape public policy because of their knowledge of a given subject. Policy-making officials
such as the legislature and governor are seldom as informed in policy-making areas as administrative personnel, who have often built a career in a single area of government activity.
Policy-making officials, whether appointed or elected, may find themselves forced to rely on
government employees for advice regarding both content and procedure. Generally seen by
the public as only administrators, they are often important players in the conception, promotion, and enactment of public policy.
The Bureaucracy, Politics, and Public Policy
LO 8.4 Analyze the political relationships among executive agencies, the
public, interest groups, and elected officials.
Each attempt to depoliticize the bureaucracy has only resulted in one kind of politics being
substituted for another. Most political observers agree that the Texas bureaucracy influences public policy in its conception, development, and administration and cannot, in fact,
be separated from politics. Administration is “in politics” because it operates in a political
environment and must find political support from somewhere if it is to accomplish goals,
gain appropriations, or even survive. The result of strong political support for an agency is
increased size, jurisdiction, influence, and prestige. A less successful agency may experience
reduced appropriations, static or reduced employment, narrowed administrative jurisdiction,
and possibly extinction. Where, then, does a unit of the bureaucracy look for the political
support so necessary for its bureaucratic well-being? It may look to clientele interest groups,
the legislature, the chief executive, and the public. Political power also comes from factors
within the bureaucracy, such as control of information and flexibility in the interpretation
and administration of laws.
Clientele Groups
The most natural allies for an agency are its constituent or clientele interest groups—the
groups that are directly affected by agency programs. The agency reciprocates by protecting its clients within the administration. Examples of close-knit alliances at the national
level are defense contractors and the U.S. Department of Defense, agribusiness and the U.S.
Department of Agriculture, and drug manufacturers and the U.S. Food and Drug Administration. In Texas, some of the closer alliances are the Texas Good Roads and Transportation
Association and the Texas Department of Transportation; oil and gas producers, processors,
and distributors and the Texas Railroad Commission; the banking industry and the Texas
Department of Banking; and the Texas Medical Association and the Texas Department of
State Health Services.
225
226
8
The Executive
The Agency–Clientele Alliance The agency and its clientele groups are often
agency capture
An agency created to
regulate an industry
becoming controlled
by the very industry it
is supposed to regulate, to the detriment
of the public interest.
allied from the agency’s beginning, and this alliance continues to grow and mature as mutual
convenience, power, and prosperity increase. Economic and political ties are cemented by
mutual self-interest. Agencies and clients share information, have common attitudes and
goals, exchange employees, and lobby the legislature together.
Mutual accommodation becomes accepted, and the clientele groups often speak of “our
agency” and spend considerable time and money lobbying for it. The agency reciprocates
by protecting its clients within the administration. Because neither the bureaucracy nor the
special interests are single entities, there is competition between special interests and agencies
for appropriations, so both seek allies in the legislative branch.
Ties do not evaporate with retirement or electoral defeat, and many former administrators and legislators work for special interests as lobbyists, consultants, and employees. State
employees know from the beginning that, in time, employment may be available from deeppocketed special interests. This creates a revolving door of employees of special interest groups
who move back and forth from special interest employment to public service. This rotation
of employees helps the interests influence public policy and is a practice that casts a shadow
of doubt over the policy-making process. In this environment, legislators, administrators,
and regulators often become promoters of the industry. At an extreme is agency capture, in
which an agency created to regulate an industry becomes controlled by the very industry it is
supposed to regulate, to the detriment of the public interest.
The Governor The need of administrative agencies for the governor’s support depends
on the extent of the governor’s formal and informal powers and how successful the agency has
been in finding other powerful political allies.
Even when an executive has extensive administrative powers (as the U.S. president does),
most agencies have considerable independence. In Texas, where the executive branch is decentralized and the governor has few direct administrative powers, administrative autonomy is
increased. Agencies still need the support of the governor, however, as the governor can influence the legislature when it considers appropriations bills and other matters important to the
agency. The governor’s line-item veto can also seriously affect an agency’s funding.
The governor’s cooperation is also essential for an agency because of the chief executive’s
power to appoint policy-making boards and commissions. Because an agency’s interests are
usually similar to those of its constituency, both want the governor to appoint board members
who will advance their mutual political goals.
Public Policy and the Iron Texas Star
The explanation of how public policy is made and implemented is a complex endeavor. Teachers and writers often use models as a means of simplification to explain the process. One such
model, the “Iron Texas Star,” is depicted in Figure 8.7. It illustrates the relationships between
the political actors in Texas government that make public policy happen. It depicts a coalition among political actors that includes interest groups, the lieutenant governor, the speaker,
legislative committees, the governor, administrators, and boards and commissions.
Texas has weak legislative committees when compared with their counterparts in the U.S.
Congress. This is attributable to the hands-on authority of the lieutenant governor and the
speaker of the Texas House of Representatives, who select most of the members and all of the
chairs of the standing committees, conference committees, and legislative boards and commissions. Their exercise of this power includes them as two points of the iron star coalition
that formulates and implements public policy in Texas. The elected administrators, boards,
and commissions are another point. The governor is also a point as a result of the line-item
The Bureaucracy, Politics, and Public Policy
FIGURE 8.7 The Iron Texas Star Model
This model illustrates the relationship among interest groups, the governor, state
agencies, and the presiding officers of the state legislature.
Special Interest Groups
Lieutenant Governor,
Legislative Institutions,
Senate Standing Committees
Speaker of the House,
Legislative Institutions,
House Standing Committees
★ CTQ
Governor
Boards,
Commissions,
Administrators
What are the bargaining chips that each of the entities at the
five points of the Iron Texas Star bring to the table as they formulate Texas public policy?
veto and the power to appoint members of state policy-making boards and commissions. The
virtual absence of a civil service for Texas government employees makes them more vulnerable to influence by the appointed boards. Finally, economic interest groups make up the
fifth, and arguably most important, point of the star. They provide the mortar that builds
and holds together this five-pointed coalition of legislators, presiding officers, the governor,
administrators, and clientele interests.
How the Coalition Functions All economic interests want favorable policies that
they gain by acquiring allies in the state government. Some industries, such as insurance
and oil and gas, have little need for direct appropriations and basically want only to be free
of government interference. This class of interests may, however, want to use the powers of
government for favorable regulations and protection from consumers and competitors. Other
interests, such as the Texas State Teachers Association and the Texas Good Roads and Transportation Association, literally survive on government appropriations.
The basic goal of special interests is to accumulate “friends” among political operatives in
the policy-making and regulatory areas of government. It is equally critical for political operatives to acquire friends among economically powerful individuals and special interest groups.
The members of the coalition also support the friends of their friends at the other points of
the iron star and thereby develop a mutual support group from which all can benefit.
Legislators, administrators, the governor, and the presiding officers rely to varying degrees
on the support of their interest group friends for campaign contributions, supplemental
income, political advancement, financial advice and opportunity, and after-office employment and retirement income.
227
228
8
The Executive
As time passes and members of the coalition become more interdependent, each looks
to the other for support. Legislators bargain for the interest of the coalition in the legislature. Administrators issue favorable regulations and administrative policies that support their special interest friends. The presiding officers shepherd the proposals of their
friends through the legislative process and also place the friends of economic special
interests on powerful legislative committees and legislative boards and commissions. The
governor appoints friends and friends of friends to various administrative boards and
commissions that make policy affecting these same friends. Other government officials
may also broker with political operatives for decisions favorable to their friends and to the
friends of their friends inside the iron star coalition. Altogether, it is a system of mutual
accommodation.
The Legislature, the Lieutenant Governor,
and the Speaker
Bureaucratic power is increased by the support of powerful legislators because an agency is
dependent on legislative allies for laws that expand its powers, increase its jurisdiction, appropriate funds for its operation, and protect it from enemies and competitors.
Although committee chairs are important in the Texas Legislature, the short session and the
power of the presiding officers limit their influence. For this reason, an agency seeks the support
of the lieutenant governor and the speaker of the house, as well as members of the finance and
appropriations committees, the Legislative Budget Board, and the Legislative Council.
The importance of legislative support explains the intense lobbying surrounding the
choice of legislators for leadership positions and continues as legislators are appointed to
powerful committees. If the interest group and its agency are unable to get allies appointed or
elected to positions of influence in the legislature, they are forced to try to gain support after
the legislators are chosen—a more difficult endeavor.
The Control of Information
Because the bureaucracy is the branch of government that works most directly with constituent interest groups and the general public, administrative agencies gather the information
used by these groups or the general public to determine what laws are needed or wanted.
Information of this nature is valuable to legislators as well as to elected or appointed administrators but may be available only at the discretion of top government administrators. In other
words, these administrators may dispense or interpret information in a way that benefits their
agency or constituent interests during the enactment of public policy.
Administration of the Law
administrative law
The rules and regulations written by administrators to implement
public policy.
Just as judges use judicial review to interpret the meaning of the law and to write case law for
its implementation, bureaucrats use what might be termed “administrative review,” and the
rules and regulations they write to implement public policy are called administrative law.
Administrative law defines the meaning of the law and determines its effect on both special
interests and the public. A small number of laws undergo judicial review, whereas all laws
undergo administrative review.
Although a law may remain on the books indefinitely, its effect is diminished with lax or
selective enforcement. In this way, administrators establish public policies that not only affect
the lives of the general public but can also modify the decisions of the state’s elected policy
makers. Although administrative decisions can be overturned by the courts and statutory law
can be rewritten by legislatures, administrative review is the first, and often the last, determination of the meaning of a law and how rigidly it will be enforced.
Bureaucratic Accountability
229
Bureaucratic Accountability
LO 8.5 Evaluate strategies for holding state agencies accountable.
Throughout the history of the United States, people have tried to hold government responsible for its policies. The rise of the bureaucratic state is the most recent challenge to responsible government. The size and political power of modern bureaucracy make the problem of
administrative accountability ever more difficult. Various organizational arrangements and
legal restrictions have been used in attempts to make the bureaucracy accountable to the
citizenry, or at least to someone the citizens can hold responsible.
Accountability to the People
The simplest approach is electing executive officers to make the bureaucracy directly
accountable to the people through the democratic process—the theory of elective
accountability. Texans sought to achieve accountability to the public by electing administrative officials, including the governor, lieutenant governor, attorney general, comptroller
of public accounts, commissioner of the General Land Office, commissioner of agriculture,
and members of the Railroad Commission and of the State Board of Education. Texans
reasoned that the public, if given an opportunity, would keep a close watch on elected
administrators and refuse to reelect those who were incompetent or dishonest. Administrators would therefore be sensitive to the wishes of the voters and would administer the law
in the interest of the general public.
Several problems have developed with the application of this idea. The most obvious is the
difficulty of determining the will of the people or even determining the public interest. Texas
is a mixture of many divergent groups with many, often incompatible, public interests—to
please one group frequently means displeasing another.
Accountability to the Legislature
Some advocates of administrative reform argue that the bureaucracy should be accountable
to the legislature because many view it as the branch of government “closest” to the people.
Because it is elected to protect constituent interests and because legislators establish policies,
many argue that these elected representatives should determine if public policies are being
administered according to legislative intent.
This principle has been implemented in Texas by establishing legislative committees and
various auditing, budgeting, and oversight boards. For example, the Texas Legislature established the Sunset Advisory Commission to make recommendations as to the alteration, termination, or continuation of many of the state’s boards, commissions, and agencies. These
institutions and their operations are reviewed periodically, and are automatically terminated
unless specific legislative action is taken to renew them. Functions may also be expanded,
diminished, or reassigned to other agencies. Even when agencies are renewed, the Sunset
Commission continues to evaluate their compliance with legislative directives. The state
auditor also appraises management changes recommended by the commission. It is reasoned
that periodic legislative evaluation, together with agency self-evaluation, should result in better, more efficient administration.
However, the principle of accountability to the legislature is questionable. The ability of
any government to separate policy formulation from its administration is difficult, and the
assumption that the legislature best represents the people is arguable. Legislators’ decisions
can be affected by financial conflicts of interest, campaign contributions, lobbying by special
interest groups, partisan considerations, primary pressures, and political ambition. Legislative accountability may serve the interests of the individual legislators and special interests
but not the general public.
elective accountability
Electing executive
officers to make the
bureaucracy directly
accountable to the
people through the
democratic process.
230
8 The Executive
Finally, because the Texas Legislature is seldom in session, permanent legislative institutions such as the Legislative Budget Board and the Legislative Council are given the task of
overseeing the administration. These institutions lack the visibility necessary for effective
operation in the public interest.
Accountability to the Chief Executive
cabinet system
A system in which the
chief executive has
the power to appoint
and remove top
administrators.
Some reformers advocate a Texas administration patterned after the cabinet system of the
federal government, in which the chief executive has the power to appoint and remove top
administrators. This would entail a reorganization and consolidation of the executive branch
into larger subject matter departments, with the governor being given the power to appoint
and remove top administrators and to control the budget. Reformers argue that a governor who had these powers would have a strong incentive to hold the appointed bureaucrats
accountable for their actions as voters usually hold the governor responsible for mishaps in
state agencies.
Theoretically, several benefits could result from accountability to the governor. The office
is visible to the general public, so the problem of who watches the watchers would be solved.
There would be no question regarding final responsibility for any corruption or incompetence in the administration. Administrative control could be simplified, resulting in coordinated planning and policy implementation. Waste and duplication could be reduced.
Consolidation and reorganization of the Texas administration is, without a doubt, necessary for an orderly, modern executive branch. If Texas reorganized public administration
along the lines of the federal model, the governor would need a similar executive office. This
executive staff, although largely out of the public eye, would nevertheless be accountable to
the governor.
This chain of accountability—administrative agency to appointed executive to staff to
governor to the people—would be weakened by the close ties usually found among administrators, constituent interest groups, and legislators. Interest groups would continue to influence administrative appointments and removals in “their agencies” just as they now influence
appointments to the boards and commissions under the current system. Even under a cabinet
system, the governor would have problems imposing accountability on agencies that have
allies among powerful interest groups and legislators.
Bureaucratic Responsibility
To whom is the Texas administrator really accountable? The answer is to a combination of
the people—the legislature, the governor, and especially the interest groups that benefit from
the programs administered by the agencies.
open meetings laws
Laws requiring that
meetings of government bodies at all
levels of government
be open to the general public, with some
exceptions.
open records laws
Laws that require most
records kept by government to be open to
the public.
Open Meetings and Open Records How, then, can the Texas administration
be made more accountable to the public? There is no single answer. One possibility could
be more transparency. A basic concept of democratic government is that policy made in the
name of the public should be made in the full view of the public. Texas has made progress
in this area. Open meetings laws require that meetings of government bodies at all levels be
open to the general public except when personnel, land acquisition, or litigation matters are
being discussed. The laws further prohibit unannounced sessions and splitting up to avoid
a quorum, and they require that public notice be posted for both open and closed sessions.
However, these laws are continuously being tested by some policy makers, who feel more
comfortable operating in secret.
Openness is further encouraged by the state’s open records laws, which require that
records kept by the government be open to the public for only the expense involved in assembling and reproducing them.
Applying What You Have Learned about the Texas Executive Branch
Whistle-blowers and Ombudsmen Another source of transparency is whistle-
blowers —government employees who expose bureaucratic excesses, blunders, corruption, or
favoritism. These employees could be commended and protected from retribution, but too often
they are instead exiled to the bureaucratic equivalent of Siberia or fired for their efforts. To its credit,
Texas’s whistle-blowers law prohibits governments from acting against employees who report law
violations. But enforcement is difficult and time-consuming, and whistle-blowers often suffer.
An ombudsman is a man or woman serving as an independent official who takes, investigates, and mediates complaints about government bureaucrats or policy. The office originated
in Sweden in the early nineteenth century and currently is present throughout the United
States. As governor, Ann Richards established an ombudsman in her office in 1991. Today,
the office of ombudsman exists in many state agencies to aid Texans with complaints or issues
with the agency, including the Texas Department of Aging and Disability Services, the Texas
Health and Human Services Commission, and the Texas Juvenile Justice Department.
The appointment of ombudsmen at every level of government would provide increased
access to the bureaucracy regarding real or imagined administrative injustices. In this way,
administrative error, injustice, or oversight could be rectified, allowing individual citizens to
have a more positive attitude toward government.
Any lack of public accountability by Texas administrators cannot be wholly blamed on poor
structural organization or the lack of consumer- or citizen-oriented agencies. No amount of reorganization and no number of consumer-focused actors can overcome the willingness of an apathetic
or indifferent public to accept bureaucratic errors, inefficiency, excesses, favoritism, or corruption.
whistle-blowers
Government employees who expose
bureaucratic excesses,
blunders, corruption,
or favoritism.
ombudsman
An independent official who takes, investigates, and mediates
complaints about government bureaucrats
or policy.
Applying What You Have Learned about the
Texas Executive Branch
LO 8.6 Apply what you have learned about the Texas executive branch.
In this chapter, you have learned what the executive branch is and what it does. You explored
the role of the executive branch in influencing public policy and how the state has attempted
to hold the executive branch accountable. We persuaded Drew DeBerry to give you an insider’s view of how the executive branch operates in practice.
Drew DeBerry is the director of budget and policy for Texas Governor Greg Abbott. Prior
to joining the Abbott administration in 2015, he was the deputy commissioner of the Texas
Department of Agriculture (TDA) for eight years. DeBerry also served in the administration
of President George W. Bush, first as the White House liaison to the United States Department of Agriculture (USDA) and then as the USDA’s deputy chief of staff.
After you have read his essay, we will ask you to identify examples of executive policy making and evaluate DeBerry’s concepts of executive accountability in action.
POLITICS IN PR ACTICE
The Texas Executive Branch: Does it run you, or do you
run it?
by Drew DeBerry
Director of Budget and Policy for Texas Governor Greg Abbott
The executive branch brings government to life on a daily basis. In a somewhat different
and more direct way than other branches of government, the executive branch operates
your government day in and day out—responding to emergencies and disasters, performing
231
★
232
8
The Executive
essential government services throughout the day and night, working with you to establish
and improve policies that affect your life, and much more.
The people of Texas have bestowed great power on the executive branch of Texas’s government. And importantly, the success of this government correlates directly with a discipline of
humility with which its custodians use this power each day.
A humble government executive understands one key principle—public service is a privilege.
Public service also comes with numerous challenges, compounded by enormous disagreement among the people on what the principal purpose of government is.
To understand the executive branch of government through the lens with which I have the
unique privilege of viewing it, we need not consume ourselves with what the government is
supposed to do for the people—although that is an important factor dividing philosophies
among your candidates for elective office. Instead, let’s look at how it does it. The how is also
the what—which is also the ultimate question of a democracy. The custodians of the executive
branch are in large part left to determine how to accomplish the what—the will of the people.
Most people agree on a few general concepts behind how government should do its job. Government should be transparent and consistent. It should embody integrity and ethics. And,
in a democratic form of government, it should be run by the people … providing services for
the people.
Government should perform the services the people need by having a deliberative and transparent process to develop a set of rules and protocols to accomplish its purpose. These rules
are often called “policies” and they ensure consistency and integrity in government.
Policies are assembled in statutes, regulations, and programmatic guidelines in a complementary way as a contract between the government and its people. This contract prevents
conflicts of interest between the individuals running the government and the people the
government serves by shifting as much decision making as possible to a time well before any
case-specific decision is necessary.
Think about policies surrounding getting your driver’s license. Without pre-developed policies, a Texas Department of Public Safety (DPS) employee could decide your driving fate
based on their subjective opinion of your driving capabilities. But instead, that staff person
is given a set of policies that tell them exactly what proficiencies you should demonstrate,
such as your vision capabilities and what training you must have completed. Little discretion
is left to the whim of the DPS employee; therefore, you can rest assured that if you meet the
prescribed criteria, you will receive a license.
Ponder for a moment the impact of executive policies on your life to this point. Your parents,
teachers, coaches, and community leaders have enforced policies by which you have lived
every day. Curfews, budgets, class start times, speed limits, basketball practice schedules—all
these things are policies developed by someone in an effort to provide some safety and reliability to your life and the lives of those around you.
Now consider the process behind those policies. Your parents likely collaborated and debated
the merits of different curfews and budgets for you and your siblings. Importantly, they most
likely had similar curfew and budget rules for each of you and your siblings as you matured.
This way none of your siblings could claim your parents had preferences for any of you. If
there were inconsistencies, the kids likely would not respect the rules and might even revolt
Chapter Summary
233
against them. Your parents then informed you of these rules and you lived by them—until
you didn’t … at which time there were consequences.
This same thing happens in your government. A legislative process, involving public participation and the legislative and executive branches, develops high level policies (i.e. statutes).
The executive branch, also with public comment and involvement, then implements and
enforces those statutes by developing more specific policies (rules and protocols). And of
course the judicial branch mediates disputes over conflicts in policies—also with the testimony of interest parties of the public. Respect for this system and the policies that it produces
requires consistency and predictability—just like your parents’ rules.
As the governor’s director of budget and policy, I get to see all aspects of this process with a
front-row seat. Since the governor has the power to veto legislation, members of the legislative
branch often work with our office to craft proposed law changes in a way that might garner
support from the governor.
An arguably more significant part of my job is helping to represent the head of the executive
branch (the governor) to the hundreds of state agencies throughout the executive branch as
these laws are implemented and enforced via rules and protocols. This is where the decisions
get meaningful to the Texas citizen who will be impacted. We consider a number of things,
such as the letter of the law, costs to taxpayers, and burdens on citizens. Success is measured
by a consistent and efficient implementation of the will of the people—not the sustained
growth of any particular program.
And inevitably we always end up back to that first question—what is the true role of government? While people like the governor, legislators, and me have our own thoughts on that
question, you have to develop your own answer. And as a citizen that is in the ownership
structure of your government, your opinion of the role of government is only valuable if you
put it to force by either expressing it to those individuals who represent you as the stewards of
government—public servants—or becoming a public servant yourself. In the end, the executive branch is entrusted to implement—transparently, consistently, and efficiently—whatever
you and your fellow citizens decide is the proper role of government.
1. Describe and give examples of policy making in the executive branch. How does the
author work with the legislature in budgeting and policy making?
2. How do involved citizens hold people like DeBerry and other appointed staff in the
executive branch accountable for transparent, consistent, and efficient implementation of
public policy? What difficulties do they encounter expressing their views in the executive
decision-making process?
★ Chapter Summary
LO 8.1 Describe the governor’s office and the characteristics of the typical Texas governor. Texas governors have
LO 8.2 Analyze both the governor’s powers of persuasion and the limits on them. The governor has relatively
been Anglo, predominately male Protestants. Modern Texas governors are conservative Republicans. Elected for four-year terms,
their professional backgrounds are most commonly either business or law and they have close connections to state and national
moneyed interests.
strong legislative prerogatives, among which are the veto and
the line-item veto. Although shared with other legislative power
bases, his or her legislative authority together with an astute use
of informal powers enables the governor to exert influence on the
234
8 The Executive
direction and operation of the legislature and consequently affect
public policy.
As chief executive, each year the governor makes hundreds
of appointments to boards and commissions in the administration but without meaningful removal or direct administrative
powers. Although they are elected to a legally weak office, politically savvy governors can craft a politically formidable position
by weaving their legislative, executive, and party powers into a
cloth held together by their supporters and lobbyists from special
interests.
LO 8.3 Analyze the structure and characteristics of the
Texas bureaucracy. Texas has a plural executive system in
which several state executives are elected independently of the
governor. Most state agencies are actually headed by multimember boards and commissions that the governor appoints but is
unable to control. Board members serve fixed overlapping terms,
which limits the governor’s powers over the agencies. With a few
exceptions, the board, rather than the governor, appoints the
actual chief operating officer, and the governor has limited powers to issue orders to state agencies or to remove state officers.
As a result, unlike most bureaucracies, the Texas bureaucracy is
decentralized with no single hierarchy and no single officeholder
in charge. Instead, the state bureaucracy is an amalgamation
of hierarchies, each headed by elected or appointed officers or
boards. Aside from hierarchy, the traditional model describes
bureaucracies as being characterized by size, expertise, and
neutrality. Reformists have pursued the goals of a public administration that is free of bias in applying the law and neutral in politics,
but efforts such as the civil service reform, and the creation of
independent governing boards have simply substituted one kind
of politics for another.
LO 8.4 Analyze the political relationships among executive agencies, the public, interest groups, and elected
officials. Clientele interest groups form close alliances with state
agencies that administer the government programs that benefit
them. Elected officials such as the governor and legislative leaders depend on the political support and expertise provided by
these groups. As a result, public policy often is made by a relatively closed network illustrated by the Iron Texas Star.
LO 8.5 Evaluate strategies for holding state agencies
accountable. Attempts to hold agency officials accountable have
taken several forms, including elective accountability, accountability to the legislature or chief executive, and the use of transparency to check agency abuses. Critics charge that none of these
strategies has worked effectively.
LO 8.6 Apply what you have learned about the Texas
executive branch. You took a glimpse inside the governor’s
office and learned how it is involved in the policy-making process.
You considered whether, in practice, the public is able to hold the
executive branch accountable for the transparent, consistent, and
efficient implementation of public policy.
Key Terms
administrative law, p. 228
agency capture, p. 226
attorney general’s opinion,
p. 212
bureaucracy, p. 212
cabinet system, p. 230
civil service (or merit)
system, p. 223
clemency powers, p. 211
contract spoils, or contract
patronage, p. 222
elective accountability,
p. 229
formal (legal)
powers, p. 203
hierarchies, p. 223
impeachment, p. 200
informal (extralegal)
powers, p. 203
message power, p. 204
ombudsman, p. 231
open meetings laws,
p. 230
open records laws, p. 230
privatization, p. 220
senatorial courtesy,
p. 210
spoils system, p. 222
veto, p. 205
whistle-blowers, p. 231
Review Questions
LO 8.1 Describe the governor’s office and the charac-
LO 8.2 Analyze both the governor’s powers of persua-
• Describe the politics and demographic profile of the
• Describe the governor’s legislative tools of persuasion.
• Describe the executive tools of persuasion. What are
teristics of the typical Texas governor.
typical Texas governor.
• Describe the Texas governor’s term in office, methods
for removal of the Texas governor, and the governor’s
ability to seek reelection.
• Explain the functions of the governor’s staff. Why
is a competent staff important for a successful
administration?
sion and the limits on them.
the weaknesses in the governor’s executive powers?
How can the governor adapt to these limits by asserting political influence?
Think Critically and Get Active!
LO 8.3 Analyze the structure and characteristics of
the Texas bureaucracy.
• Become familiar with Texas’s elected executives and
elected boards. To whom are they responsible?
• How does the use of appointed boards affect the
governor’s ability to serve as the “chief executive” of
Texas?
• Define and explain the characteristics of Texas
bureaucracy.
• Describe the classical model of bureaucracy, and
explain how the Texas executive branch differs from
other bureaucratic organizations.
• Explain how Texas’s historical background and Tex-
ans’ viewpoint of government influenced the current
administrative structure.
235
LO 8.4 Analyze the political relationships among
executive agencies, the public, interest groups, and
elected officials.
• Discuss the importance of the Texas bureaucracy in
policy formation, development, and implementation.
• Describe the Iron Texas Star model.
LO 8.5 Evaluate strategies for holding state agencies
accountable.
• Discuss the various methods used to hold the bureaucracy accountable to the people.
• Which methods are used in Texas government?
Which are most effective?
• How do open records and open meetings laws affect
bureaucratic behavior? Why are these laws important?
Think Critically and Get Active!
Explore the organization of the governor’s office at gov
.texas.gov/organization and the appointment process
at gov.texas.gov/appointments. Follow recent appointments at gov.texas.gov/news/archive/appointment.
Find out how you can benefit from the activities and
services of the other elected state officers: the attorney
general at www.texasattorneygeneral.gov; the comptroller of public accounts at www.comptroller.texas.
gov; the commissioner of the General Land Office at
www.glo.texas.gov; and the commissioner of the Texas
Department of Agriculture at www.texasagriculture
.gov.
Follow the money. Investigate the interest groups and
individuals that have contributed to the governor’s political campaign and those of other elected executives in
Texas using the database created by the National Institute
on Money in State Politics at www.followthemoney.org.
Use state agencies to become an intelligent consumer.
• Contact the Consumer Protection Division
of the Office of the Attorney General to learn
about your rights and how to exercise them
at www.texasattorneygeneral.gov/cpd/
consumer-protection.
• Before you buy a new vehicle, contact the Texas
Department of Motor Vehicles, which maintains “lemon law” records and processes warranty complaints at www.txdmv.gov/motorists/
consumer-protection/lemon-law.
• Search to see if you, a friend, or a relative has
unclaimed property, ranging from long forgotten
bank accounts to uncashed checks to security deposits, listed in the Texas Comptroller’s “Come and
Get It” database at www.ClaimItTexas.org.
• Shop for a less expensive or more eco-friendly electricity plan at www.powertochoose.org.
• Get help paying for college from the Texas
Higher Education Coordinating Board at www.
collegeforalltexans.com.
• Get tips on buying insurance at www.tdi.texas.gov/
consumer/index.html.
9
The Judiciary
Texas students at a mock trial. During their lifetimes, most Texans will see the inside of a courtroom as plaintiffs, defendants, or jurors. In this chapter, you will learn what the courts do and the kinds of cases Texas courts decide.
Bob Daemmrich/Alamy Stock Photo
Learning Objectives
LO 9.1 Describe the differences between criminal and civil cases and between original and appellate jurisdiction.
LO 9.2 Explain how the courts are organized in Texas, and identify the jurisdiction of each major court.
LO 9.3 Understand the role of grand juries and trial juries, and analyze the responsibilities of
citizens in the Texas legal system.
LO 9.4 Compare and evaluate the most common methods of judicial selection in the United
States and in Texas.
LO 9.5 Apply what you have learned about the Texas judiciary.
Legal Cases and Jurisdiction
237
A
merican society has increasingly turned to the judiciary to find answers to personal,
economic, social, and political problems. Courts are often asked to determine our rights,
and important legal questions touch almost every aspect of our lives. For example, what level
of privacy should we expect in our cars, workplaces, and homes? What treatment should
people of different ethnicities, races, genders, sexual orientations, or age groups expect? In a
divorce proceeding, with which parent should the children live? Should an accused person
go to jail, and if so, for how long? Should a woman be allowed to terminate her pregnancy?
Should a patient be allowed to refuse potentially lifesaving treatment? These are among the
thousands of questions asked and answered daily by courts in the United States.
In the past few decades, Texas courts have heard important or controversial cases involving topics such as flag burning, the death penalty, school desegregation, school finance, a
criminal case involving the governor, the welfare of children in a polygamist sect, and one
of the largest civil cases in U.S. history, in which Texaco was found liable to Pennzoil (represented by legendary Houston attorney Joe Jamail) for $10.5 billion in 1985 (that’s $23.5
billion in 2016 dollars). Court cases determine our legal rights, shape public policy, and
undeniably affect our daily lives.
In this chapter, we will focus on the Texas courts, judges, and juries. The sheer size and
complexity of the Texas court system will quickly become clear. We will also look at the
controversies surrounding the selection of Texas judges and the politics that affect the legal
process.
Legal Cases and Jurisdiction
LO 9.1 Describe the differences between criminal and civil cases and
between original and appellate jurisdiction.
Legal cases can be classified into two broad categories, civil and criminal, based on their subject matter. Jurisdiction within the court system is determined by whether the case is being
tried for the first time or if a prior court decision is being reviewed on appeal.
Civil and Criminal Cases
In the American legal system, cases are generally classified as either civil or criminal. Table 9.1
shows the most important differences between these two types of cases. A civil case concerns
private rights and remedies and usually involves private parties or organizations (Garcia v.
Smith), although the government may on occasion be a party to a civil case. A personal injury
suit, a divorce case, a child custody dispute, a breach-of-contract issue, and a conflict over
water rights are all examples of causes of action in civil cases.
A criminal case involves a violation of penal law that is prosecuted by the state. If convicted, the lawbreaker may be punished by a fine, imprisonment, or both. The action is by
the state against the accused (State of Texas v. Smith). Examples of criminal actions range from
murder to speeding.
One of the most important differences between civil and criminal cases is the burden
of proof (the duty that a party has to prove its position in court). In civil cases, the standard used is a preponderance of the evidence, meaning that whichever party has more
evidence or proof on its side should win the case, no matter how slight the advantage
is. However, in a criminal case, the burden of proof falls entirely on the government or
prosecution. The prosecution must prove that the defendant is guilty beyond a reasonable doubt, the standard used to determine the guilt or innocence of a person criminally
charged. To prove a defendant guilty, the state must provide sufficient evidence of guilt
so that jurors have no doubt that might cause a reasonable person to question whether the
accused was guilty.
civil case
Concerns private
rights and remedies
and usually involves
private parties or
organizations (Garcia
v. Smith), although the
government may on
occasion be a party to
a civil case.
criminal case
Involves a violation of
penal law that is prosecuted by the state.
burden of proof
The duty a party has
to prove its position in
court.
preponderance of the
evidence
Whichever party
has more evidence
or proof on its side
should win the case,
no matter how slight
the advantage is.
beyond a reasonable
doubt
The standard used to
determine the guilt or
innocence of a person
criminally charged.
To prove a defendant
guilty, the state must
provide sufficient evidence of guilt so that
jurors have no doubt
that might cause a
reasonable person to
question whether the
accused was guilty.
238
9 The Judiciary
TABLE 9.1 Major Differences between Civil and Criminal Cases
Civil and criminal cases involve very different concepts of law based on different
court procedures, who brings the case, and the consequences that result from court
decisions in each type of case.
Civil Cases
Criminal Cases
Deal primarily with individual or property
rights and involve the concept of
responsibility but not guilt.
Deal with public concepts of proper
behavior and morality as defined in penal
law. A plea of guilty or not guilty is entered.
Plaintiff, or petitioner, who brings suit is
often a private party, as is the defendant or
respondent.
Case is initiated by a government
prosecutor on behalf of the public.
Dispute is usually set out in a petition.
Specific charges of wrongdoing are spelled
out in a grand jury indictment or a writ of
information.
A somewhat more relaxed procedure is
used to balance or weigh the evidence;
the side with the preponderance of the
evidence wins the suit.
Strict rules of procedure are used to
evaluate evidence. The standard of proof is
guilt beyond a reasonable doubt.
Final court remedy is relief from or
compensation for the violation of legal
rights.
Determination of guilt results in punishment.
 Why should criminal cases require a higher standard of proof than civil cases?
Sometimes an action may have both civil and criminal consequences. Suppose that in
the course of an armed robbery at a cell phone store, the perpetrator shoots a sales associate.
The state could prosecute the suspect for aggravated robbery and assault, which would be a
criminal action. Then, the sales associate could sue the robber for compensation for medical
expenses, lost earning power, and other damages, which would be a civil action.
original jurisdiction
The power to try a
case being heard for
the first time.
appellate jurisdiction
The power vested in
an appellate court to
review and revise the
judicial action of an
inferior court.
briefs
Written arguments
prepared by lawyers
arguing a case in court
that summarize the
facts of the case, the
pertinent laws, and the
application of those
laws to the facts supporting their positions.
Original and Appellate Jurisdiction
Original jurisdiction is the power to try a case being heard for the first time. It involves
following legal rules of procedure in hearing witnesses, viewing material evidence, and examining other evidence to determine guilt in criminal cases or responsibility in civil cases. The
judge oversees procedure, but evaluating evidence is the jury’s job (unless the right to a jury
trial has been waived, in which case the judge weighs the evidence). The verdict or judgment
is determined and the remedy set. A trial involves the determination of fact and the application of law.
Appellate jurisdiction refers to the power vested in an appellate court to review and revise
the judicial action of an inferior court. Such appeals do not involve a new trial but rather a
review of the law as it was applied in the original trial. Many appeals are decided by review of
the record (transcript) of the case and the respective lawyers’ briefs which are written arguments prepared by lawyers arguing a case in court that summarize the facts of the case, the
pertinent laws, and the application of those laws to the facts supporting their positions. Sometimes, lawyers may appear to present oral arguments, but witnesses and material evidence are
not presented because appellate proceedings are based on law and not fact, A reversal does
not necessarily mean that the convicted individual is innocent, only that the legal process was
Court Organization
improper. Consequently, that person may be tried again, and questions of double jeopardy
(a second prosecution for the same offense after acquittal in the first trial) are not involved
because the individual waives the right against double jeopardy by appealing the case.
239
double jeopardy
A second prosecution
for the same offense
after acquittal in the
first trial.
Court Organization
LO 9.2 Explain how the courts are organized in Texas, and identify the
jurisdiction of each major court.
Figure 9.1 shows the organizational structure of the Texas
court system and the various types and levels of courts in
Did You Know? In 2015, 77 percent of the
the system. It is important to note that some courts within
criminal cases filed in Texas municipal courts involved
this rather large and complicated system have overlapping
violations of state traffic laws.
jurisdiction.
Municipal Courts
The state authorizes incorporated cities and towns to establish municipal courts, and city
charters or municipal ordinances provide for their status and organization. Legally, municipal courts have exclusive jurisdiction to try violations of city ordinances. They also handle
minor violations of state law—class C misdemeanors for which punishment is a fine of $500
or less and does not include a jail sentence. (Justice of the peace courts have overlapping
jurisdiction to handle such minor violations.) Most municipal court cases in Texas involve
traffic and parking violations.
When Texas cities designate their municipal courts as courts of record, the records of the
trial form the basis of appeal to one of the county courts. However, in many smaller cities records are not kept and defendants may demand a completely new trial in overworked
county courts, where most such cases are simply dismissed. These new trials are known as
de novo trials in which a higher court completely retries the case, in contrast to an appeal in
which a higher court simply reviews the law as decided by a lower court.
People who favor the court-of-record concept often point to the large amount of revenue
lost because trials de novo usually result in dismissal of minor traffic cases. Opponents of
the concept argue that municipal courts are too often operated as a means of raising revenue
rather than of achieving justice, and the fact that municipal courts collected $697 million in
2015 lends some support to their argument.
Judges of the municipal courts meet whatever qualifications are set by the city charter or
ordinances (see Figure 9.2). Some cities require specific legal training or experience. Other
charters say very little about qualifications. Most municipal court judges are appointed for
two-year terms but serve at the pleasure of the governing bodies that have selected them.
Furthermore, these judges’ salaries are paid entirely by their respective cities and vary widely.
Where statutes authorize them, some cities have established more than one municipal court
or more than one judge for each court.
Justices of the Peace
The justice of the peace courts in Texas are authorized by the Texas Constitution, which requires
that county commissioners establish at least one and not more than eight justice precincts per
county; a precinct is the area from which each justice of the peace is elected for a four-year
term. County commissioners determine how many justices of the peace shall be elected (determined by the population) and where their courts shall sit. Changes are made continuously,
making it difficult to pin down the number of justices of the peace at any given time. The
Texas Judicial Council determined that there were 807 justices of the peace in 2015.1
de novo trials
Trials in which a higher
court completely
retries the case, in
contrast to an appeal
in which a higher court
simply reviews the law
as decided by a lower
court.
9 The Judiciary
FIGURE 9.1 Court Structure of Texas
This court organizational chart arranges Texas courts from those that handle the
least serious cases at the bottom to the highest appeals courts at the top. As you
read the text, look for ways to simplify and professionalize the state’s court structure.
SUPREME COURT
(1 Court — 9 Justices)
COURT OF CRIMINAL APPEALS
(1 Court — 9 Judges)
— Statewide Jurisdiction —
— Statewide Jurisdiction —
• Final appellate jurisdiction in civil
• Final appellate jurisdiction in
and juvenile cases.
Criminal Appeals
COURTS OF APPEALS
(14 Courts — 80 Justices)
— Regional Jurisdiction —
• Intermediate appeals from
trial courts in their respective
courts of appeals districts.
Appeals of
Civil Appeals
State Highest
Appellate Courts
criminal cases.
Death Sentences
240
State Intermediate
Appellate Courts
DISTRICT COURTS
(465 Courts — 465 Judges)
•
•
•
•
Original jurisdiction in civil actions over $200, divorce,
title to land, contested elections.
Original jurisdiction in felony criminal matters.
Juvenile matters.
13 district courts are designated criminal district courts;
some others are directed to give preference to certain
specialized areas.
State Trial
Courts of General
and Special
Jurisdiction
COUNTY-LEVEL COURTS
(515 Courts — 515 Judges)
Constitutional County Courts (254)
(One Court in Each County)
— Jurisdiction —
•
•
•
•
•
Original jurisdiction in civil actions
between $200 and $10,000.
Probate (contested matters may be
transfered to District Court).
Exclusive original jurisdiction over
misdemeanors with fines greater
than $500 or jail sentence.
Juvenile matters.
Appeals de novo from lower courts
or on the record from municipal
courts of record.
Statutory County Courts (243)
(Established in 89 Counties
plus 1 Multi-County Court)
— Jurisdiction —
• All civil, criminal, original
and appellate actions
prescribed by law for
constitutional county
courts.
• In addition, jurisdiction over
civil matters between $200
and $200,000 (some courts
may have higher maximum
jurisdiction amount).
JUSTICE COURTS
(807 Courts — 807 Judges)
(Established in Precincts Within
Each County)
•
•
•
•
— Jurisdiction —
Civil actions of not more than
$10,000.
Small claims.
Criminal misdemeanors punishable
by fine only (no confinement).
Truancy.
★ CTQ
Statutory Probate
Courts (18)
(Established in
10 Counties)
— Jurisdiction —
• Limited primarily
to probate matters.
County Trial
Courts of Limited
Jurisdiction
MUNICIPAL COURTS
(928 Cities — 1,272 Judges)
•
•
•
•
— Jurisdiction —
Criminal misdemeanors punishable
by fine only (no confinement).
Exclusive original jurisdiction over
municipal ordinance criminal cases.
Limited civil jurisdiction.
Truancy.
Local Trial Courts
of Limited
Jurisdiction
How can Texas voters intelligently choose between candidates
for so many judicial positions? How could the court structure
be simplified?
Texas Judicial Council.
Court Organization
FIGURE 9.2 Judicial Qualifications and Selection in Texas
This figure provides the minimum qualifications to become a judge and the method
by which judges are selected for the different Texas courts, from those that handle
the least serious cases at the bottom to the highest appeals courts at the top.
SUPREME COURT
COURT OF CRIMINAL APPEALS
Number: 1 chief justice and 8 justices.
Selection: Partisan, statewide election. Vacancies
between elections filled by gubernatorial
appointment.
Qualifications: Citizen of U.S. and of Texas; age 35
to 74; and a practicing lawyer, or lawyer and
judge of court of record together, for at least 10 years.
Term: 6 years.
Number: 1 presiding judge and 8 judges.
Selection: Partisan, statewide election. Vacancies
between elections filled by gubernatorial
appointment.
Qualifications: Citizen of U.S. and of Texas; age 35
to 74; and a practicing lawyer, or lawyer and
judge of court of record together, for at least 10 years.
Term: 6 years.
Civil Appeals
Criminal Appeals
Appeals of
Death Sentences
COURTS OF APPEALS
Number: Each court has 1 chief justice and from 2 to 12
additional justices, for a total of 80 justices statewide.
Selection: Partisan election within each court of appeals district.
Vacancies between elections filled by gubernatorial
appointment.
Qualifications: Citizen of U.S. and of Texas; age 35 to 74; and
a practicing lawyer, or lawyer and judge of court of record
together, for at least 10 years.
Term: 6 years.
DISTRICT COURTS
Number: 1 judge per court.
Selection: Partisan, district-wide election. Vacancies between
elections filled by gubernatorial appointment.
Qualifications: Citizen of U.S. and of Texas; age 25 to 74;
resident of the district for 2 years; and a practicing lawyer or
judge, or both combined, for 4 years.
Term: 4 years.
COUNTY-LEVEL COURTS
Constitutional County Courts
Statutory County Courts
Statutory Probate Courts
Number: 1 judge per court.
Selection: Partisan, countywide election. Vacancies
between elections filled
by appointment by the
commissioners court.
Qualifications: “Shall be well
informed in the law of the
State.” (Law license not
required.)
Term: 4 years.
Number: 1 judge per court.
Selection: Partisan, county-wide
election. Vacancies between
elections filled by the
commissioners court.
Qualifications: Citizen of U.S.,
age 25 or older; resident of
county for at least 2 years;
and licensed attorney who has
practiced law or served as a
judge for 4 years.
Term: 4 years.
Number: 1 judge per court.
Selection: Partisan, county-wide
election. Vacancies between
elections filled by the
commissioners court.
Qualifications: Citizen of U.S.,
age 25 or older; resident of
county for at least 2 years; and
licensed attorney who has
practiced law or served as a
judge for 5 years.
Term: 4 years.
JUSTICE COURTS
Number: 1 judge per court.
Selection: Partisan, precinct-wide election.
Qualifications: No specific statutory or constitutional
provisions apply.
Term: 4 years.
★ SRQ
MUNICIPAL COURTS
Number: Generally, 1 court per incorporated municipality
and 1 judge per court. Statutes allow some city
governing bodies to establish more than 1 court and/or
more than 1 judge per court.
Selection: Elected or appointed by the governing body of
the city as provided by city charter or ordinance.
Qualifications: Determined by the city's governing body.
Term: 2 or 4 years.
Should justices of the peace and municipal court judges be
required to be lawyers?
Texas Judicial Council.
241
242
9 The Judiciary
The functions of the justice of the peace courts are varied. Figure 9.3 shows that they
mostly handle criminal cases. They have jurisdiction over criminal cases in which the fine
is less than $500, but may also handle civil matters in which the dispute involves less than
$10,000. They may issue warrants for search and arrest, serve ex officio as public notaries,
conduct preliminary hearings, perform marriages, act as coroners in counties having no medical examiner, and serve as small claims courts. Most cases filed in justice courts are criminal
and involve traffic violations.
No specific statutory or constitutional provisions require that a justice of the peace be a
lawyer. A justice of the peace who is not a licensed attorney is required by statute to take an
80-hour course in the performance of the duties of the office, plus a 20-hour course each
year thereafter at an accredited state-supported institution of higher education. Serious questions have arisen as to the constitutionality of this provision because it adds a qualification
for the office not specified in the constitution. Also, justice of the peace salaries vary a great
deal from county to county and at times even from justice to justice within the same county.
The qualifications and competence of justices of the peace have been controversial. Critics
have argued that they are often unprofessional, incompetent, and biased. They argue that the
jurisdiction of justices of the peace functions should be professionalized and that the jurisdiction of the justice of the peace in underpopulated rural areas should be consolidated. Defenders have traditionally referred to the justice courts as the “people’s courts” and maintain that
elimination of the justice courts would remove the local control many treasure. To eliminate
them, it is argued, would put judicial power in the hands of professionals and would ignore
the amateur status of these justices who make decisions by relying on common sense.
County Courts
Each of the 254 counties in Texas has a county court presided over by the county judge (sometimes respectively called the constitutional county court and the constitutional county judge). The
Texas Constitution requires that the county judge be elected by voters for a four-year term and
be “well informed in the law of the state”—a rather ambiguous stipulation. Thus, the constitution does not require that a county judge possess a law degree. Salaries are paid by the county
and vary greatly. County courts handle probate and other civil matters in which the dispute is
between $200 and $10,000; their criminal jurisdiction is confined to serious misdemeanors for
which punishment is a fine greater than $500 or a jail sentence not to exceed one year.
Because the constitutional county judge also has administrative responsibilities as presiding officer of the commissioners court (the governing body for Texas counties and not a
judicial entity at all), he or she may have little time to handle judicial matters. The legislature
has responded to this by establishing county courts-at-law in certain counties to act as auxiliary or supplemental courts in some, but not all, of Texas’s counties. The qualifications of
the judges of the statutory county courts-at-law vary according to the statute that established
each particular court. In addition to residence in the county, a court-at-law judge usually
must have four years of experience as a practicing attorney or judge.
Various state laws determine whether these courts have either civil or criminal jurisdiction
or a combination of both. They have civil jurisdiction in cases involving less than $200,000.
Their criminal jurisdiction includes misdemeanors that are more serious than those tried by
the justice of the peace and municipal courts or misdemeanors that include a jail sentence
or a fine in excess of $500. Figure 9.3 shows that more than three-fifths of cases disposed in
county-level courts are criminal, with cases involving drugs, theft, and driving while intoxicated or under the influence of drugs being the most common. Civil cases include probate
matters and suits to collect debt.
Administration of justice is very uneven in Texas county courts. Although many of the
judges are competent and run their courts in an orderly manner, others regard their courts and
Court Organization
243
FIGURE 9.3 Civil and Criminal Cases Filed in Texas Courts
This figure shows the share of civil and criminal cases filed in Texas courts in 2015.
Minor cases are handled in municipal, justice of the peace, and county-level courts.
District courts handle serious civil and criminal cases that are occasionally appealed
to courts of appeal. The supreme court is the court of last resort in civil cases, and
the court of criminal appeals is the final court of appeal for criminal cases.
Civil
Cases
Criminal
Cases
Municipal
Courts
89%
Justices of
the Peace
83%
County-Level
Courts
District Courts
Courts of
Appeals
11%
17%
62%
38%
32%
68%
49%
51%
Court of
Criminal Appeals
100%
Supreme
Court
100%
★ CTQ
Explain the differences between civil and criminal cases.
Source: Texas Judicial Council.
official jurisdictions as personal fiefdoms, paying little attention to the finer points of law or
accepted procedures. Opportunities for arbitrary action are compounded if the county judge
is performing as a judicial officer as well as the chief administrative officer of the county.
District Courts
District courts are often described as the chief trial courts of the state, and as a group, these
courts are called the general trial courts. Currently, there are 465 district courts in Texas, all
of which function as single-judge courts. Each judge, elected for a four-year term by voters in
244
9
The Judiciary
their district, must be at least 25 years of age, a resident of the district for two years, a citizen
of the United States, and a licensed practicing lawyer or judge for a combined four years.
District courts have jurisdiction in felony cases, which comprise approximately one-third
of their criminal caseload. Civil cases in which the matter of controversy exceeds $200 may
also be tried in district courts, and such cases constitute the greatest share of their workload.
In addition, juvenile cases are usually tried in district courts. Although most district courts
exercise both criminal and civil jurisdiction, there is a tendency in metropolitan areas for the
plea bargaining
multiple district courts to specialize in criminal, civil, or family law matters. Figure 9.3 shows
Negotiations between
that the district courts handle more civil than criminal cases.
the prosecution and
the defense to obtain
Both criminal and civil cases are often settled out of court by negotiation between the
a lighter sentence
parties
involved. In criminal cases this negotiation is called plea bargaining, which may
or other benefits in
result in a deal in which the prosecutor and the defense attorney agree to a lighter sentence
exchange for a guilty
plea by the accused.
or other benefits in exchange for a guilty plea. This process saves the state a tremendous
amount of time and money, with approximately three out of
every four criminal cases in Texas disposed of in this way.
Without plea bargaining, court delays would be increased
Did You Know? Drug offense cases
by months if not years in many urban areas. Although effiaccounted for 30 percent of the criminal cases filed in
cient, this practice raises many issues concerning equity and
Texas district courts in 2015.
justice because it often encourages innocent people to plead
guilty and allows guilty people to escape with less punishment than provided for by the law.
Likewise, many civil lawsuits are resolved by negotiated settlements between the parties.
At times this may be an appropriate and just recourse, but in many of the state’s most populous counties, there is such a backlog of cases before the courts that it can take years for a
matter to be heard and settled. As a result, litigants often choose to settle their case out of
court for reasons other than justice.
Courts of Appeals
IMAGE 9.1 The Texas Court of Criminal Appeals is the
Fourteen courts of appeals hear immediate appeals
in both civil and criminal cases from district and
county courts in their area. Actually, only a small
percentage of trial court cases are appealed; for
example, in 2015, the courts of appeals disposed
of 11,189 cases, and the appeals courts reversed the
decision of the trial court in only 7 percent of those
cases. Appeals judges are elected from their districts,
shown in Figure 9.4, for six-year terms and must be
at least 35 years of age, with a minimum of 10 years
of experience as a lawyer or judge.
Texas Judicial Branch
final court for criminal appeals in Texas and automatically
reviews death penalty cases.
★ CTQ
How representative of the ethnic/racial and
gender diversity of the Texas population is
the current Court of Criminal Appeals?
Court of Criminal Appeals
Texas has a dual system of courts of last resort. The
Texas Supreme Court is the highest state appellate
court in civil matters, and the Texas Court of Criminal
Appeals is the highest state appellate court in criminal
matters. Among the other 49 states, only neighboring
Oklahoma has a similar bifurcated system.
Although most criminal cases decided by the
14 courts of appeals do not advance further, some
are heard by the Court of Criminal Appeals, which
Court Organization
FIGURE 9.4 Appeals Court Districts
Fourteen courts of appeals are multi-judge courts that serve the geographical areas
shown on this map. These courts handle both criminal and civil appeals from district
courts in their area.
DALLAM
SHERMAN
HARTLEY
MOORE
OLDHAM
OCHILTREE
HANSFORD
HUTCHINSON
POTTER
LIPSCOMB
HEMPHILL
ROBERTS
CARSON
GRAY
WHEELER
ARMSTRONG
DEAF SMITH
PARMER
7
RANDALL
CASTRO
SWISHER
COLLINGSWORTH
DONLEY
HALL
BRISCOE
CHILDRESS
HARDEMAN
LAMB
BAILEY
HALE
FLOYD
COTTLE
MOTLEY
WILBARGER
FOARD
WICHITA
CLAY
MONTAGUE
YOAKUM
TERRY
LYNN
KING
DICKENS
CROSBY
GARZA
KENT
B AYLO R
KNOX
ST O N E WALL
TH R O C KMO R T O N
H A S K ELL
COOKE
GRAYSON
LA M A R
FA N NI N
R E D RI V E R
ARCHER
B O WI E
2
JACK
YOUNG
5
DENTON
WISE
6
D ELTA
COLLIN
H O P KIN S
HUNT
M O R R IS
LUBBOCK
HOCKLEY
F R A N K LI N
COCHRAN
TIT U S
CASS
CAMP
ROCKWALL
GA IN E S
D AW S O N
SCURRY
BORDEN
11
FIS H E R
PARKER
PA LO P IN T O
STEPH E N S
S H A C K E LF O R D
KAUFMAN
H O WA R D
MITC H E LL
N O LA N
TAY LO R
SOMERVELL
E R ATH
H A R RIS O N
VAN ZANDT
GREGG
ELLIS
EASTLA N D
C ALLA H A N
PA N O LA
HENDERSON
RUSK
NAVARRO
EL PASO
LOVING
WINKLER
ECTOR
MI DLA N D
STERLING
ANDERSON
BOSQUE
RUNNELS
10
B R O WN
C O LE M A N
HAMILTON
HUDSPETH
WARD
CULBERSON
CRANE
REEVES
MCLENNAN
MILLS
UPTON
REAGAN
SCHLEICHER
BURNET
MASON
SUTTON
PRESIDIO
1 and 14
A U S TI N
FAYETTE
LIBERTY
WALLE R
BASTROP
CALDWELL
COMAL
C O LO R A D O
GUADALUPE
4
F O RT B E N D
GONZALES
BEXAR
UVALDE
ORANGE
JEFFERSON
CHAMBERS
H A R RIS
BANDERA
KINNEY
HARDIN
MONTGOMERY
WAS HI N G T O N
KENDALL
REAL
SAN JACINTO
GR IM E S
LEE
HAYS
EDWARDS
VAL VERDE
9
WALKER
BLANCO
KERR
BREWSTER
POLK
JASPER
BURLESON
TRAVIS
GILLESPIE
TYLER
BRAZOS
3
KIMBLE
NEWTON
MADISON
MILAM
WILLIAMSON
LLANO
TERRELL
SABINE
ANGELINA
TRINITY
ROBERTSON
MENARD
PECOS
CROCKETT
HOUSTON
LEON
FALLS
BELL
8
SHELBY
NACOGDOCHES
SAN
AUGUSTINE
LAMPASAS
SAN SABA
12
LIMESTONE
CONCHO
MCCULLOCH
JEFF DAVIS
FREESTONE
CORYELL
TOM GREEN
IRION
CHEROKEE
HILL
C O MA N C H E
COKE
GL A S S C O C K
UPSHUR
SMITH
JOHNSON
HOOD
MA RT IN
MA RIO N
WOOD
JO N ES
ANDREWS
RAINS
DALLAS
TARRANT
GA LV E S T O N
LAVACA
MEDINA
WHARTON
B R AZ O RI A
WILSON
DE WITT
JACKSON
ZAVALA
FRIO
ATASCOSA
KARNES
MATAGORDA
VICTORIA
MAVERICK
GOLIAD
DIMMIT
LA SALLE
MCMULLEN
LIVE OAK
13
BEE
CALHOUN
REFUGIO
SAN PATRICIO
JIM
WELLS
WEBB
ARANSAS
NUECES
DUVAL
KLEBERG
JIM HOGG
ZAPATA
BROOKS
KENEDY
Overlap of Districts 5 and 6
STARR
Overlap of Districts 6 and 12
Court No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
★ CTQ
WILLACY
HIDALGO
CAMERON
Location
Houston
Fort Worth
Austin
San Antonio
Dallas
Texarkana
Amarillo
El Paso
Beaumont
Waco
Eastland
Tyler
Corpus Christi & Edinburg
Houston
Number of Judges
9
7
6
7
13
3
4
3
4
3
3
3
6
9
How does appellate jurisdiction differ from original
jurisdiction?
Source: Office of Court Administration, Texas Judicial Council, Annual Statistical Report for the Texas Judiciary: Fiscal Year 2013, Austin: Texas, 2013.
245
246
9 The Judiciary
consists of a presiding judge and eight other judges. Texas Court of Criminal Appeals judges
are elected statewide in partisan elections for six-year overlapping terms, with three judges
elected every two years. Sometimes more than three positions are on the ballot because a
justice has resigned and a new judge must be elected to complete the unexpired term. Justices
must be at least 35 years of age and be lawyers or judges with 10 years of experience.
The Court of Criminal Appeals has exclusive jurisdiction over automatic appeals in death
penalty cases. Since the U.S. Supreme Court restored the
use of capital punishment in 1976, Texas has executed far
more people than any other state.
As of October 1, 2016, the state had executed 538 people
Did You Know? All executions in Texas take
since 1982, when the death penalty was reinstated in Texas.2
place at the state’s 167-year-old Huntsville Unit, commonly referred to as the “Walls Unit” because of its
Since 2000, an average of 20 people have been executed each
large red brick walls.
year, with 13 executions taking place in 2015 and 7 during
the first nine months of 2016. Death penalty cases have led
to a number of headline-generating stories, including controversies regarding the use of lethal injection, the execution
of persons who were juveniles at the time of their crime, foreign nationals denied access to
consular assistance, and those who might have been innocent of the crime for which they were
sentenced to death.
Supreme Court
IMAGE 9.2 The Texas Supreme Court does not
Texas Judicial Branch
handle criminal cases, but it is the final court of appeals
in civil cases. Some civil cases can have a broad impact
on society, and they generate much attention from
interest groups when they affect business regulation or
corporate liability.
★ CTQ
Why would corporations and plaintiffs’
attorneys have an interest in making
contributions to the campaigns of Texas
Supreme Court candidates?
The Texas Supreme Court is the final court of appeals
in civil and juvenile cases. Original jurisdiction of the
court extends to the issuance of writs and the conduct of proceedings for the involuntary retirement
or removal of judges. All other cases are in appellate
jurisdiction. The court also has the power to establish rules for the administration of justice—rules of
civil practice and procedure for courts having civil
jurisdiction. In addition, it makes rules governing the
licensing of members of the state bar.
The Texas Supreme Court consists of one chief justice and eight associate justices—all elected statewide.
As is the case for the Court of Criminal Appeals, three
of the nine supreme court justices are elected every two
years for six-year terms. A Texas Supreme Court justice
must be at least 35 years of age, a citizen of the United
States, a resident of Texas, and a lawyer or judge of a
court of record for at least 10 years.
The Texas Supreme Court spends much of its time
deciding which petitions for review will be granted,
because not all appeals are heard. Generally, it takes
only those cases it views as presenting the most significant legal issues. It should also be noted that the state’s
supreme court at times plays a policy-making role in
the state. For example, in 1989, the court unanimously
declared, in Edgewood v. Kirby (777 S.W.2d 391), that
the wide disparities between rich and poor school districts were unacceptable and ordered changes in the
financing of Texas’s public schools.
Juries
247
Juries
LO 9.3 Understand the role of grand juries and trial juries, and analyze the
responsibilities of citizens in the Texas legal system.
Juries are an important and controversial aspect of the American judicial system. Some people
argue that juries are beneficial because they allow for community input and the use of common sense in the legal system. Others claim that they often do not fairly represent the community and that their reasons for their decisions are often inappropriate or suspect. What
is certain is that although millions of Americans serve on juries every year, the frequency
of their use is declining, and an overwhelming number of cases in our legal system are not
decided by them.3
Grand Jury
When a person is accused of a serious crime, the matter is usually taken to a grand jury,
which in Texas consists of 12 people who sit in pretrial proceedings to determine whether
sufficient evidence exists to try an individual and therefore return an indictment. (Some
states do not have grand juries, but in those that do, the size ranges from 5 to 23 members.)
An alternative to a grand jury indictment is the information, a written accusation made by
the prosecutor against a party charged with a minor crime. Filed by the prosecutor with the
appropriate court, the information must be based on an investigation by the prosecutor after
receiving a complaint and a sworn affidavit that a crime has been committed.
The grand jury does not determine the guilt or innocence of the accused but rather
whether there is sufficient evidence to bring the accused to trial. If the evidence is determined to be sufficient, the accused is indicted. An indictment is a formal written accusation
issued by a grand jury against a party charged with a crime when it has determined that
there is sufficient evidence to bring the accused to trial; a vote of at least 9 of the 12 grand
jurors is needed to indict. An indictment returned by a grand jury is sometimes referred to
as a true bill. If an indictment is not returned, the conclusion of the grand jury is a no bill,
which is a grand jury’s refusal to return an indictment filed by the prosecutor.
At times, a grand jury may return indictments simply because the district attorney asks for
them. In fact, grand juries return true bills in approximately 95 percent of the cases brought
before them. This high indictment rate is attributable at least in part to the fact that the
accused cannot have an attorney in the room during questioning.
Some grand juries, known as “runaway” grand juries, may consider matters independent
of the district attorney’s recommendation. In general, prosecutors do not like a grand jury to
be so assertive and are likely to refer only routine matters to it. To bypass it, the prosecutor
may refer cases to a second grand jury meeting simultaneously or postpone action for another,
more favorable, grand jury.
Following a 2015 legislative reform, grand jurors are selected using the same type of broad
random selection process employed to select trial jurors. This method should result in grand
juries that look more like the general population in their communities. Before the recent
reform, many district courts appointed members of a grand jury commission that would
handpick jurors, a process derisively referred to as the “pick-a-pal” system. Under current law,
a district judge is now instructed to call for between 20 and 125 prospective grand jurors to
be summoned in the same way as trial jurors. From this pool of potential grand jurors, 12 are
selected to become the grand jury, with four other individuals chosen as alternates.
The district attorney may determine whether or not a person indicted for a crime will be
prosecuted. Some district attorneys will prosecute only if the odds are high that a conviction
can be secured. This improves their “conviction rate,” which can be presented to the voters
when reelection time comes around. Other district attorneys may take most indicted persons
grand jury
In Texas, consists of
12 people who sit in
pretrial proceedings
to determine whether
sufficient evidence
exists to try an individual and therefore
return an indictment.
information
A written accusation
made by the prosecutor against a party
charged with a minor
crime; it is an alternative to an indictment
and does not involve a
grand jury.
indictment
A formal written
accusation issued by
a grand jury against
a party charged with
a crime when it has
determined that there
is sufficient evidence
to bring the accused
to trial.
true bill
An indictment
returned by a grand
jury.
no bill
A grand jury’s refusal
to return an indictment
filed by the prosecutor.
248
9 The Judiciary
to trial, even if the chances for conviction are low, but this may prove politically costly and
can make the district attorney appear ineffective.
Petit (Trial) Jury
A jury for a criminal or civil trial is known as a petit jury. Trial by jury in criminal cases is a
right guaranteed by the Texas Constitution and the Sixth Amendment of the U.S. Constitution. Even if the accused waives the right to trial by jury, expecting to be tried by the judge,
the state may demand a jury trial in felony cases. Although
not required by the U.S. Constitution, in Texas the parties
to a civil case generally decide whether a jury trial will be
Did You Know? Only about 1 percent of
held. If a jury is to be used in a civil case in district court,
the cases handled in the county and district courts of
Texas involve jury trials.
the party requesting it pays a nominal fee to see that a jury
panel is called. After the panel is summoned, the per diem
for each juror is paid from public funds, which can entail
considerable expense to the public if a trial becomes lengthy. County courts, justice of the
peace courts, and municipal courts have six-person juries, whereas 12 people are on juries at
the district court level.
A venire, or jury panel, is randomly selected from among those individuals who are registered
to vote, have a Texas driver’s license, or have a Texas identification card. Jurors must be literate
citizens at least 18 years of age, qualified to vote, and not indicted or convicted for a theft or
felony. Exemptions from jury service are now severely restricted. Persons older than 70 years of
age, high school and college students, primary uncompensated caretakers for invalids, and those
with legal custody of a child 12 years old or younger whose service would leave the child without
adequate supervision are automatically exempt from mandatory jury service but may serve if
they desire. Other excuses from jury service are at the discretion of the judge. Jurors in Texas
must be paid at least $6 a day on the first day and $40 for the second day and beyond. At its
discretion, a county may provide other compensation, ranging from transportation reimbursement to free meals. Texas employers are not required to provide paid leave to employees serving
as jurors but cannot fire employees for serving as jurors.
In cases that receive a
great deal of publicity, a
IMAGE 9.3 An attorney addresses a jury in a civil
special venire may consist
case.
of several hundred persons.
Jury selection may last days
or weeks, sometimes even
longer than the trial itself.
If either side believes that a
prospective juror has a preconceived opinion about
guilt or innocence, the prosecutor or defense attorneys
challenge for cause
may bring a challenge for
A request to a judge
cause, which is a request
that a prospective
to a judge that a prospecjuror not be allowed to
tive juror not be allowed to
serve on the jury for a
specific reason, such
serve on the jury for a speas bias or prior knowlcific reason, such as bias or
edge of the case.
prior knowledge of the case.
Challenges for cause extend
★ CTQ What steps are taken to eliminate bias in
to any factor that might conthe jury selection process?
vince a judge that the juror
Stockbyte/Getty Images
petit jury
A jury for a civil or
criminal trial.
Selection of Judges
could not render a fair and impartial decision. No limits are placed on the number of challenges for cause, but the judge decides whether to grant each specific challenge.
Statutes also allow challenges of jurors without cause. A challenge made to a prospective juror without being required to give a reason for removal is known as a peremptory
challenge; no reason needs to be provided to remove a juror. The possibility exists, therefore, that nothing other than intuition can cause an attorney in a case to ask that a juror be
dismissed. The only limitations to this type of challenge occur when the judge believes that
prospective jurors are being eliminated solely because of their ethnicity, race, or sex. Although
peremptory challenges provide lawyers with a great deal of freedom in deciding to remove
jurors, each side is given only a limited number of these challenges for each case.
Many lawyers maintain that jury selection is more significant than the actual argument
of a case. Some law firms hire jury and trial consulting companies to assist in the selection
process. Psychological profiles of ideal jurors may be used to try to avoid jurors who might
be unfavorable to a client and to identify those who might be supportive. For example, the
prosecution would quite possibly want a grandparent or parent of young children on a jury
dealing with child molestation, while the defense would wish to avoid such a juror. Many trial
law firms and prosecutors also maintain a file on jurors from completed cases to help them
select or avoid prospective jurors based on past behavior.
Although some states allow non-unanimous jury verdicts in both criminal and civil matters,
juries in criminal cases in Texas must agree unanimously (this is not required in civil cases).
Even if only one juror disagrees, the result is a hung jury, which is a jury that is unable to agree
on a verdict after a suitable period of deliberation; the result is a mistrial. In this event, the prosecutor must decide whether to try the case again with a different jury or drop the matter. Because
no verdict was reached with a hung jury, the accused person is not put in double jeopardy by
a second trial. Usually, in the event of a second hung jury, the prosecution will drop the case.
249
peremptory challenge
A challenge made to
a prospective juror
without being required
to give a reason for
removal; the number
of such challenges
allotted to the prosecution and defense is
limited.
hung jury
A jury that is unable
to agree on a verdict
after a suitable period
of deliberation; the
result is a mistrial.
Selection of Judges
LO 9.4 Compare and evaluate the most common methods of judicial
selection in the United States and in Texas.
States use several methods to select judges (see How Does Texas Compare?). In fact, some
states use different methods for different types of courts. One popular variant is often called
the merit plan, or Missouri plan, a method of selecting judges on the basis of the merit or
quality of the candidates and not on political considerations. Under this system, the governor
fills court vacancies from a list of nominees submitted by a judicial commission, and these
appointees later face retention elections. A relatively large number of states elect judges; in
some states, the elections are partisan (candidates are officially affiliated with a political
party), while in the others they are nonpartisan. Some states also provide for the appointment
of judges by governors, and a few allow the legislature to make the selections. With the exception of municipal court judges, Texas elects all of its judges in partisan elections.
Reformers developed the merit plan in an attempt to make the selection of judges less political. This method supposedly bases judicial selection on the merit or quality of the candidates
as opposed to political considerations. For example, under a merit plan, the governor might fill
court vacancies from a list of several nominees submitted by a judicial commission chaired by a
judge and composed of both lawyers and laypersons. Appointed judges would hold their posts
for at least a one-year probationary period, until the next election. Their names would then be
put on a retention ballot, which simply asks whether a judge should be retained. It is a “yes” or
“no” vote for the candidate with no other competition. Historically, more than 90 percent of
such votes result in the candidate’s election (or reelection). It is important to note that scholars
have overwhelmingly found that this process is no less political than other selection methods and
that there is no clear evidence that this process produces different or more meritorious judges.4
merit plan, or
Missouri plan
A method of selecting
judges on the basis
of the merit or quality
of the candidates and
not on political considerations. Under this
system, the governor
fills court vacancies
from a list of nominees
submitted by a judicial
commission, and these
appointees later face
retention elections.
250
9
The Judiciary
How Does Texas Compare?
Texas (along with seven other states) holds partisan
elections, whereas 14 other states use nonpartisan elections which do not include party labels on the ballot.
The most popular method of selection (used in 16
states) is the merit, or Missouri, plan, which claims to
be less political and combines an initial appointment
with retention elections.
Selecting Judges
States use different methods to choose their judges,
including those who serve on their supreme court.
Figure 9.5 shows that 12 states allow their governor
or legislature to appoint supreme court justices. More
commonly, states use elections to select their judges.
There are three general types of judicial elections.
WA
MT
ME
ND
OR
VT
MN
ID
WI
SD
WY
MI
IA
NE
NV
UT
CA
PA
IL
CO
KS
AZ
NM
OK
TEXAS
IN
OH
WV
MO
NH
MA
RI
CT
J
N
DE
MD
VA
KY
NC
TN
AR
SC
MS
AK
NY
AL
GA
LA
HI
FL
Appointed by the governor or legislature.
Appointive–elective (including the Merit Plan)
Nonpartisan election
Partisan election
FIGURE 9.5 State-by-State Selection of Supreme Court Justices
Source: 2013 Book of States, Lexington, KY: Council of State Governments, 2013.
FOR DEBATE
★ CSQ
What are the advantages and
disadvantages of selecting judges
through partisan elections?
Do these advantages and
disadvantages differ depending on
the position, such as supreme court
justice, district court judge, or justice
of the peace?
Selection of Judges
The Politics of Judicial Selection in Texas
The system of judicial selection in Texas and practices related to it have been under attack.
We shall examine why the courts and judges of Texas are criticized and, in doing so, gain a
clearer understanding of the political nature of the court system.
Voter Knowledge Because Texas elects judges, a natural question arises: How knowl-
edgeable are voters in these judicial elections? In other words, are voters cognizant of the
candidates and their records in office? Research on the U.S. Supreme Court has repeatedly
shown that the vast majority of the public knows little about its rulings and actions.5 Therefore, if most Americans know very little about the U.S. Supreme Court—the court that
receives far and away the most media attention in this country—how much do voters know
about state and local courts? In a given election, Texas voters are regularly asked to cast a
ballot to choose judges for the Supreme Court, the Court of Criminal Appeals, a court of
appeals, district courts, county courts, and for a justice of the peace. For instance, many voters in Harris County may be presented with the task of electing more than 70 different judges
in a single election. Both systematic research and abundant anecdotal evidence indicate that
most voters in Texas are unaware of candidates’ qualifications or experience.
Partisanship Because they know so little about individual candidates, in general elec-
tions voters rely heavily on a candidate’s partisan affiliation as a cue to determine how to vote.
In other words, a voter who has no knowledge of the views or backgrounds of the candidates
on the ballot may cast their vote based on the party label (Republican Party, Democratic
Party, Libertarian Party, Green Party) next to the candidate’s name on the ballot (or simply
cast a straight ticket vote for all of a party’s candidates). In Texas, this is a very common
approach for making selections in judicial elections.
Republican candidates have dominated recent elections for the state’s highest courts, occupying all nine positions on the Supreme Court all nine spots on the Court of Criminal
Appeals, and 66 of the 80 judgeships across the state’s 14 courts of appeals (see Table 9.2).
Eleven of the 14 courts of appeals have Republican majorities while only three (based in
Corpus Christi/Edinburg , El Paso, and San Antonio) have Democratic majorities. Between
2013 and 2016 there was a lone Democrat on the Court of Criminal Appeals. Lawrence
“Larry” Meyers was elected as a Republican in 2010 but switched his party affiliation to
Democrat in 2013. In 2016, Meyers’ six-year term on the court was up and he ran for reelection as a Democrat; in contrast to 2010, he went down to defeat, 55 percent to 40 percent.
It has been argued that because judges, especially at the appellate level, make significant
policy decisions, it is reasonable for voters to select judges on the basis of political party affiliation. Party affiliation may provide accurate information concerning the general ideology
and thus the decision-making pattern of judges. However, even if this is true, voting based
solely on a judicial candidate’s political party can lead to controversial results.6
Campaign Contributions Because voters often look for simple voting cues such as
familiarity with the candidate’s name or party identification, candidates often want to spend
as much money as possible to make their name or candidacy well known. In recent years,
spending in judicial races has increased dramatically. Candidates need to win two contests—
their party’s primary and the general election. In modern politics, this can be an expensive
endeavor, and for more than a decade, Republican candidates have dominated the race for
campaign contributions.
In addition to questions concerning fairness or the advantages of incumbency surrounding campaign finances, many critics have also asked whether justice is for sale in Texas. More
directly, individuals or organizations often appear before judges to whose election campaigns
251
252
9
The Judiciary
IMAGE 9.4 Like other politicians, many judges seek publicity through social
media. As this screenshot makes clear, Texas Supreme Court Justice Don Willett
is very active on Twitter. Willett has tens of thousands of followers and is a prolific
tweeter, with his tweets covering a wide range of topics from the political to the
personal.
★ CTQ
Would Justice Willett be as active on Twitter if his continued
presence on the Texas Supreme Court did not depend on winning
both a primary election and a general election?
they have contributed money. The Texas Insiders feature puts a face on major contributors to
the Texas Supreme Court candidates.
In 2009, the U.S. Supreme Court weighed in on the question of judicial bias where litigants significantly influenced the election of judges hearing their cases. In Caperton v. A. T.
Massey Coal Co., Inc., the U.S. Supreme Court held that the chairman of A. T. Massey Coal
had created such a question by donating $3 million to help finance the successful election
of a new justice to the Supreme Court of Appeals of West Virginia. The possible conflict of
interest arose because the A. T. Massey Coal Company had a $50 million civil suit appeal
pending before the court at the time; it was later decided in Massey’s favor by a 3–2 vote,
with the new justice voting with the majority. A 5–4 U.S. Supreme Court majority reversed
and remanded the case, holding “there is a serious risk of actual bias . . . when a person with a
personal stake in a particular case had a significant and disproportionate influence in placing
the judge on the case.” 7
Selection of Judges
TABLE 9.2 The Partisanship of Texas Judges, 2017: Supreme Court,
Court of Criminal Appeals, and Courts of Appeals
Court
Appellate
Total
District
Number
(see Figure 9.4) of Judges
Republicans
Democrats
Supreme Court
9
9
0
Court of Criminal Appeals
9
9
0
Total
80
66
14
First
9
8
1
Second
7
7
0
Third
6
6
0
Fourth
7
3
4
Fifth
13
13
0
Sixth
3
3
0
Seventh
4
4
0
Eighth
3
0
3
Ninth
4
4
0
Tenth
3
3
0
Eleventh
3
3
0
Twelfth
3
3
0
Thirteenth
6
0
6
Fourteenth
9
9
0
Courts of Appeals
Texas State Directory.
 Does the partisan balance on these courts accurately reflect the partisan balance among Texas voters?
Part of this debate of possible impropriety involves the battle between plaintiffs’ attorneys
and defense attorneys in civil cases. Texas has traditionally been a conservative, pro-business
state. This perspective was usually reflected in the decisions of the judiciary, which often
favored big business and professional groups (such as the medical profession). Plaintiffs’ lawyers and their related interest groups have made a concerted effort in the past few decades to
make the judiciary more open to consumer suits, often filed against businesses, doctors, and
their insurance companies. The plaintiffs’ lawyers poured millions of dollars into the campaign accounts of candidates they believed would align more favorably with their perspective.
Defense and business attorneys and tort reform advocates such as Texans for Lawsuit Reform
(TLR) responded with millions of dollars of their own contributions. These lawyers, from
both vantage points, then often appear before the very judges to whom they have given these
large sums of money.
253
254
★
9 The Judiciary
Texas Insiders
Campaign Contributors in Texas Supreme
Court Elections: Following the Money
Important plaintiffs’ attorneys and their
umbrella organization, the Texas Trial Lawyers
Association, are missing from this list of top
contributors. Plaintiffs’ lawyers primarily represent injured workers, patients, consumers, and
the insured in liability suits against corporations,
insurance companies, and medical providers.
These attorneys, including notables like Steve
Mostyn, are mostly aligned with the Democratic
Party. Since Mostyn and his colleagues have
not believed that Democratic judicial candidates have had a realistic chance of winning in
statewide contests, they tend to direct their
campaign contributions to other races.
Lawyers are by far the single largest group
of contributors in judicial campaigns for
both trial and appellate courts, including the
Texas Supreme Court, as shown in Table 9.3.
Contributors to candidates running for the
Texas Supreme Court gave a total of $4,636,331
in 2014. As usual, Republicans won all four
positions being filled that year; no candidate
running as a Democrat has been elected to the
Texas Supreme Court in more than 20 years.
Thinking about the role of elites in Texas
politics
★ PRQ
The list of top contributors to Texas Supreme
Court candidates includes the preeminent
corporate defense law firms in the state, those
representing insurance companies and other
businesses that are often sued. Among the
other top contributors is Texans for Lawsuit
Reform, a business-sponsored group that
seeks to limit the ability to bring liability
suits (featured in our Texas Insiders section in
Chapter 10). These interests are closely allied
with the Republican Party.
Is there a conflict of interest when
law firms represent clients before
a judge that their contributions
helped elect? Should judges recuse
themselves, or abstain, from cases
that affect their largest campaign
contributors? In your answer, consider whether any single contributor’s share of a judge’s campaign
treasury could be sufficient to create a genuine conflict of interest.
TABLE 9.3 Top 10 Contributors in Texas Supreme Court Races
Contributor
Total
Percent of Total
Nathan Hecht
$204,507
4.4%
Self-funded candidate
Texans for Lawsuit Reform
$112,152
2.4%
General business
Vinson & Elkins
$107,457
2.3%
Lawyers and lobbyists
Andrews Kurth LLP
$106,500
2.3%
Lawyers and lobbyists
USAA
$80,000
1.7%
Finance, insurance, and real estate
Texas Oil and Gas Association
$75,000
1.6%
Oil and gas
Good Government Fund
$62,500
1.4%
Oil and gas
Bass Brothers Enterprises
$58,000
1.3%
Finance, insurance, and real estate
Haynes & Boone
$55,189
1.2%
Lawyers and lobbyists
Fulbright & Jaworski
$45,189
1.0%
Lawyers and lobbyists
National Institute on Money in State Politics and the Texas Ethics Commission.
Sector
Selection of Judges
Clearly, the current system is quite political, and many people are critical of it for a variety
of reasons. This has led to repeated attempts to reform the way Texas selects its judges or
change what is permissible in campaign fundraising. Proposals for change have come from
many sources, including chief justices of the state supreme court and a committee formed by
a lieutenant governor. However, with such divergent interests involved and no clear alternative acceptable to all groups, very little judicial reform has actually taken place.
Ethnic/Racial and Gender Diversity
A major criticism of the current partisan election system involves one of its outcomes: limited ethnic/racial and gender diversity on the bench. Figure 9.6 details the ethnic and gender profile of the state’s judges. Although Anglos account for less than half (43 percent) of
the state’s overall population, 77 percent of the state’s judges are Anglos. In contrast, only
17 percent of the state’s judges are Latinos, and even fewer are African Americans or Asian
Americans.
FIGURE 9.6 Ethnicity/Race and Gender of Texas Judges
This figure compares the ethnicity/race and gender of Texas judges with the population as a whole as of 2015.
80
77%
70
66%
60
Percentage
50%
50%
50
43%
40%
40
34%
30
20
17%
11%
10
4%
5%
1%
0
Asian
Americans
African
Americans
Latinos
Texas Population
★ SRQ
Anglos
Females
Males
Texas Judges
Does the ethnicity or race of judges matter for the fair administration of justice in the Texas courts? Does the lack of ethnic or racial
parity affect the perception of justice among Latinos and African
Americans?
255
256
9
The Judiciary
Women’s representation in judicial posts varies considerably across the different court
levels. Women are close to parity on the Texas Court of Criminal Appeals and the 14 appeals
courts. However, the lower courts are more male dominated—overall, one-third (34 percent)
of all Texas judges are women.
Applying What You Have Learned about
Texas Courts
LO 9.5 Apply what you have learned about the Texas judiciary.
You have learned that Texas selects its judges using partisan elections in which parties nominate candidates who are then elected by the state’s voters. You also learned that this method
for selecting judges has been criticized for various reasons and that many states have turned
to other strategies to select their judges. So we asked the former chief justice of the Texas
Supreme Court Wallace Jefferson to explain his views of the judicial selection process based
on his practical experiences inside the judiciary.
Wallace Jefferson was appointed to the Texas Supreme Court in 2001 and subsequently
elected to the bench by voters in 2002. In 2004 he was named the 26th chief justice of the
Texas Supreme Court. He was elected chief justice in 2006 and reelected for a six-year term in
2008. Jefferson made judicial history as the first African American justice and chief justice of
the Texas Supreme Court. He is a partner at Alexander, Dubose, Jefferson & Townsend LLP.
After you have read the chief justice’s essay, we will ask you to identify the major
features of his proposal to reform the way Texas judges are selected and we will ask you
to evaluate Chief Justice Jefferson’s proposal compared to Texas’s current system for
selecting judges.
★
POLITICS IN PR ACTICE
Choosing Judges: My View from the Inside
by Wallace B. Jefferson
Former Chief Justice of the Texas Supreme Court
Historically, the states, Texas included, have rejected the federal model of executively
appointed judges. When Texas was a much smaller place, this probably made sense: electing
judges ensured that they were people respected by—and responsive to—the local community.
Today, however, these historical justifications make little sense. Texas now has 1,882 judges
in its appellate, district, county, and justice courts. These judges sit on a dizzying array of
courts. This is especially apparent at the trial court level, where judges have different but
frequently overlapping jurisdictions. Some hear only criminal cases; others only cases related
to specific subject matters, like family or probate cases; and some only claims worth more (or
less) than a specified amount of money.
Even at the appellate level, Texas is one of only two states with two highest courts, one civil
and one criminal. And Houston, unlike every other part of the state, has two intermediate
appeals courts covering the same territory. In spite of this huge number of judges and the
confusing courts system, Texas expects voters to choose good judges in contested, partisan
elections. But the circumstances are stacked against the voters.
Applying What You Have Learned about Texas Courts
Take Harris County, for instance. A voter in the 2014 election would have voted for just nine
statewide officials, her member of congress, state senator, and state representative. She also
would have voted for 75 judges.
No voter, not even the most conscientious, could be expected to make an informed choice in
each of these races. For the average voter, who probably has no more than a passing familiarity
with the judicial system, these choices must be flummoxing.
The result is that Texas voters choose their judges based almost exclusively on their partisan
identity. Indeed, with few exceptions, that is probably all the vast majority of voters know
about the judicial candidates on the ballot. Name recognition even for Supreme Court and
Court of Criminal Appeals justices, who run statewide, is extremely low.
What’s worse is that partisan identity is a poor proxy for judicial competence. Most judges—
and nearly all trial judges, who constitute the great majority of judges in Texas—are asked
infrequently, if ever, to pass upon the fraught social and constitutional issues that animate
media coverage of the judiciary.
Instead, judges perform a function that is much more mundane—and much more personal.
Judges probate wills and apportion divorcing spouses’ assets; they preside over criminal trials;
they oversee business disputes.
Most of the time, the decisions judges make matter only to the parties directly involved. Very
rarely do their decisions implicate the judge’s personal politics. Instead, they implicate the
judge’s sense of fairness, her patience, her compassion, and her intelligence. These traits are
not correlated with any particular party.
Texas’s current system for selecting judges thus ensures that at every election, good and bad
judges alike are swept out of office based on their party membership alone. Similarly, there is
evidence that judicial candidates have lost simply because they have names commonly associated with racial or ethnic minorities—or names that are just plain unusual.
To limit the pernicious effects of judicial elections, I have long advocated that Texas move
towards a system that balances Texans’ desire for a direct say in choosing their judges with
the need to ensure that competency and integrity are valued over partisanship and name
recognition.
My proposal would see the creation of a merit selection panel that recommends accomplished and distinguished lawyers for a place on the bench. Those judges recommended by
the panel would be appointed by the governor, subject to nonpartisan retention elections.
This recommendation is not a panacea, but it would limit both the negative effects of low
information and partisan voting, and it would help ensure that Texas’s judges are of the
highest caliber.
1. Among the various methods states use to select their judges, which type does the former
chief justice propose that Texas use? How does this system differ from the way the state
currently chooses its judges?
2. What arguments does Chief Justice Jefferson use to support his proposals for a merit
system? Why does he argue that party labels are unimportant in the judicial selection
process?
257
258
9
The Judiciary
★ Chapter Summary
LO 9.1 Describe the differences between criminal and
civil cases and between original and appellate jurisdiction. Cases in the legal system can be classified in two ways. Civil
cases deal primarily with individual or property rights. Criminal
cases deal with violations of penal law. There are two types of
jurisdiction. Original jurisdiction is the basic power to try a case
for the first time. Courts with original jurisdiction are called trial
courts, and they determine the facts such as guilt in criminal cases
or responsibility in civil cases. Trial courts also apply the law to
the facts in each case. Appellate jurisdiction is the ability to review
the decisions of a lower court by determining if the trial judge
properly applied the law.
LO 9.2 Explain how the courts are organized in Texas,
and identify the jurisdiction of each major court. Among
the trial courts, municipal and county courts handle minor civil or
criminal cases. District courts handle all serious civil and criminal
cases. Appeals from district and county courts go to one of the
courts of appeal. The court of last resort for criminal cases is the
Texas Court of Criminal Appeals while the Texas Supreme Court
makes final decisions in most civil cases.
The organization of the Texas court system is often viewed as
too big and complicated. Lines of jurisdiction sometimes overlap.
Judicial salaries and the qualifications needed to serve as a judge
vary widely across the different levels of the Texas judicial system. Critics have urged reorganization of the courts along more
simplified lines for decades.
American judicial system. The judicial system has two primary
types of juries. A grand jury issues indictments that indicate
whether sufficient evidence exists to bring the accused to trial in
criminal cases. A petit jury determines guilt in a criminal case and
responsibility in a civil case.
LO 9.4 Compare and evaluate the most common methods of judicial selection in the United States and in Texas.
Various states use different methods for selecting judges. A
few states empower the governor or legislature to appoint their
judges, while others allow voters to elect their judges. In many
states, the judges are elected by voters, sometimes in nonpartisan elections and sometimes in partisan elections, as in Texas.
The goal of electing judges is to give voters democratic control
over the judiciary. Many states attempt to combine the advantages of appointment and election by allowing the governor
to appoint a judge for a short probationary period after which
voters are allowed to decide whether or not to retain the judge.
Regardless of the method, judicial selection is highly politicized
because courts make life-altering decisions and often shape
public policy.
LO 9.5 Apply what you have learned about the Texas
judiciary. You explored the methods by which we presently
select judges in Texas via partisan elections. You reviewed former
Texas Supreme Court Chief Justice Jefferson’s proposal to reform
the way judges are selected. You evaluated the arguments that he
presented in favor of the reform proposal.
LO 9.3 Understand the role of grand juries and trial
juries, and analyze the responsibilities of citizens in
the Texas legal system. Juries are an important aspect of the
Key Terms
appellate jurisdiction,
p. 238
beyond a reasonable
doubt, p. 237
briefs, p. 238
burden of proof,
p. 237
challenge for cause, p. 248
civil case, p. 237
criminal case, p. 237
de novo trials, p. 239
double jeopardy, p. 239
grand jury, p. 247
hung jury, p. 249
indictment, p. 247
information, p. 247
merit plan, or Missouri
plan, p. 249
no bill, p. 247
original jurisdiction,
p. 238
peremptory challenge,
p. 249
petit jury, p. 248
plea bargaining, p. 244
preponderance of the
evidence, p. 237
true bill, p. 247
Review Questions
LO 9.1 Describe the differences between criminal
and civil cases and between original and appellate
jurisdiction.
• What are the characteristics that distinguish crimi-
nal and civil cases? What is the nature of the parties
involved in both types of cases? What are the requisite standards of proof regarding evidence?
• What is the difference between original and appellate
jurisdiction? What types of issues and evidence are
considered in each?
Think Critically and Get Active!
LO 9.2 Explain how the courts are organized in Texas,
and identify the jurisdiction of each major court.
• What types of jurisdiction do the different Texas
courts have?
• What basic elements of a case determine where the
case is heard?
• How do the qualifications of judges vary from court
to court?
LO 9.3 Understand the role of grand juries and trial
juries, and analyze the responsibilities of citizens in
the Texas legal system.
• Compare and contrast grand juries and petit juries.
259
• How are jurors selected to serve on panels?
• What is the function of each type of jury?
LO 9.4 Compare and evaluate the most common meth-
ods of judicial selection in the United States and in
Texas.
• What are some of the methods employed for selecting
judges in the United States?
• How are judges chosen in Texas? How is the process
of judicial selection a political one?
• What are some criticisms of the manner in which the
state’s judges are chosen?
Think Critically and Get Active!
Team up with groups that represent your views on
the courts. Groups that advocate using the courts to
protect consumers, workers, and patients include the
Texas Trial Lawyers Association at www.ttla.com
(@TTLA_). Groups that fight non-meritorious lawsuits
and excessive damage claims in the Texas legal system
include Texans for Lawsuit Reform (TLR) at www
.tortreform.com (@lawsuitreform).
Find out who the municipal court judges are in your
community. These are the judges who hear cases involving traffic tickets or violations of municipal ordinances.
Go to www.txcourts.gov, click on the drop-down bar
for “Judicial Data” at the top of the page, and then select
the “Judicial Directory.”
Support efforts to make courts across the country more
independent at www.justiceatstake.org (@JusticeStake).
Find out how various groups rate judicial candidates. For
example, the Texas Bar Association rates candidates running
for positions on the Supreme Court, the Court of Criminal Appeals, and the 14 courts of appeals at www.texasbar.
com/pollresults. The Texas League of Women Voters provides valuable information about judicial candidates in their
Texas Voters Guide at www.lwvtexas.org.
★ PRQ
How is it possible for ordinary voters to evaluate the qualifications of
judges who handle complicated legal
issues? Should they take the advice
of the bar association, businesses,
labor organizations, or political parties? Which organizations can provide
voters with reliable information about
judges’ qualifications, ethics, and
sense of justice?
10
Law and Due Process
The quality of justice depends upon the values of the people who interpret and implement the law. In this chapter, you
will evaluate the gap between the ideals and practice of justice and how it affects your basic rights and responsibilities in
the real world.
Xavier Van Eegan/Alamy
Learning Objectives
LO 10.1 Analyze civil law and the policy issues related to it.
LO 10.2 Analyze the elements and causes of crime.
LO 10.3 Analyze the concepts of due process.
LO 10.4 Evaluate punishment and rehabilitation policies.
LO 10.5 Apply what you have learned about the due process of law.
Civil Law
261
A
s you have learned, there are substantial differences between criminal and civil law.
Civil law deals largely with private rights and individual relationships, obligations, and
responsibilities. Criminal law is concerned with public morality—concepts of right and
wrong as defined by government.
Hence, criminal cases are prosecuted by public officials (usually county or district attorneys)
in the name of the public. Civil suits are brought by a plaintiff, who is usually a private person or institution, although governments occasionally initiate civil suits when seeking to
enforce antitrust laws, abate public nuisances, or pursue other noncriminal matters.
Perhaps the most important distinction between civil and criminal law is the way each
deals with court findings. In criminal law the aim is punishment, but in civil law the remedy
used to redress an injury is relief from ongoing injury or compensation for past damages. For
example, criminal law might punish a thief, but the civil law remedy for the unlawful seizure
of property might be the return of the property to its rightful owner. Regarded as civil rather
than criminal, juvenile proceedings are an interesting illustration of the difference between
civil and criminal law. Assigning juveniles to the custody of reform schools is not intended as
punishment but as an effort to correct their delinquency. Assigning an adult to a penitentiary,
however, is considered punishment.
plaintiff
The party bringing
a civil suit, usually
a private person or
institution.
Civil Law
LO 10.1 Analyze civil law and the policy issues related to it.
The primary focus of civil law is defining and civilizing interpersonal relationships; it also
enforces legitimate contracts between parties and assigns responsibilities for personal injuries.
We will provide a sample of some civil laws, but you should remember that Texas civil law
fills volumes of printed matter. Texas civil statutes are organized into 28 codes ranging from
the Agriculture Code to Vernon’s Annotated Civil Statutes. It is impossible to discuss the state’s
civil laws in detail—even the most competent attorneys tend to specialize in specific fields
of law.
Types of Civil Law
Civil law in the states today is based in large part on centuries-old English common law we
first discussed in Chapter 3. Common law is judge-made law; whether written or unwritten,
it is based on precedents, previously decided cases used as a guiding principle for future
cases. If the essential elements of a current case are like those of a case already decided, the
judge makes the same decision as was made in the earlier case. These decisions made over the
years have fallen into patterns that form the basis of common law. In contrast, statutory law is
law that has been passed by legislative bodies and is written in codebooks. Legislatures have
incorporated many common-law principles into civil statutes and thereby reduced the need
to rely directly on common law.
Family Law The family is protected by civil law in Texas. For example, even if a man
and a woman have not participated in a formal ceremony of marriage in the presence of
authorized officers of religious organizations or judges, the law may nevertheless recognize
the existence of a marriage. A man and a woman who live together, agree they are married,
and publicly present themselves as husband and wife will have a common-law marriage, their
children will be legitimate, and the marriage can be terminated through a legal divorce.
However, divorce action must be taken within one year of separation, or the marriage will be
treated as if it never existed.
As a community property state, Texas requires that a divorced couple divide property
acquired during marriage, and one spouse is not usually responsible for the other’s support.
precedents
A previously decided
legal case used as a
guiding principle for
future cases.
262
10
Law and Due Process
Children, however, have the right to be supported by their parents even if the parents are
divorced. Either parent might be given legal custody of the children, but the other parent may
be responsible for part of their support.
Real Estate Law Titles to real property, like land and buildings, are registered in the
office of the county clerk, and the legitimate use of any property by its owner is enforceable
in the courts. The owner of a homestead will not lose it in a civil suit except to satisfy tax
liens, home improvement loans, mortgage loans for initial purchase of the property, or home
equity loans.
Probate Law Even in death, property rights are protected because a person may control
transfer of his or her estate through a will. If a will exists at the time of death, the function of
the courts (usually the county courts) is to probate the will, determining that it is the last and
valid will of the deceased. If a person dies without leaving a will, civil law defines the right to
inherit among various relatives; if there are no living relatives, the property passes to the state.
The right to inherit, bequeath, sell, lease, or transfer property is protected by law, but the
rights of ownership do not include the privilege of misuse. The right to own a gun does not
convey the right to use it as a weapon in murder; the privilege of opening an industrial plant
does not include the right to pollute. The regulation of private property for public purposes
is one of the oldest functions of law.
Business Regulations Texas law includes thousands of provisions regulating private property, and it establishes hundreds of courts and administrative agencies to elaborate,
interpret, and enforce those regulations. State regulatory agencies include the Texas Railroad
Commission, the Commissioner of Insurance, the Texas Finance Commission, the Public
Utilities Commission, and occupational licensing boards. Their administrative regulations
are administrative law enforced by civil rather than criminal courts, and the attorney general
may also bring civil suits to enforce antitrust and consumer protection laws.
Corporate Law When corporations secure permission from the state to conduct business, the secretary of state issues them a charter, the organizing document that defines their
structure, purposes, and activities. Civil law holds that when a new corporation is chartered,
a new legal person is created—one who can sue and be sued. Corporations are frequently sued
for breach of contracts and personal injury claims.
Contract Law When two parties enter into a valid contract, the courts will enforce
the terms of the contract. However, certain kinds of contracts are not enforceable in the
courts—for example, contracts with minors. Texas right-to-work laws also forbid contracts
between labor and management that establish a closed shop in which management agrees to
hire only labor union members or a union shop in which management agrees to require all
new employees to join the union as a condition for their continued employment. Because of
these restrictions, Texas is considered inhospitable to unions.
torts
A civil wrong, whether
intentional or negligent, that results in
the injury of another
person.
Torts Cases involving a civil wrong that results in a personal injury are called torts. Sometimes injuries result from negligence when someone fails to act with the prudence an ordinary
person would exercise. For example, victims of reckless driving or medical malpractice may
bring a tort action to recover losses. Other examples of personal injury may result from intentional acts such as selling defective products or falsely defaming someone’s character. Slander
is spoken and libel is published defamation, but either may result in a lawsuit to recover monetary compensation for damage to one’s reputation and earning potential.
Civil Law
263
Issues in Civil Law
Did You Know?
The law effectively extends
the protection against libel to vegetables, as farmers
may sue people who make unfounded allegations
against their products.
Tort Reform Insurance companies, corporations, medical practitioners, and others
have argued that society has become overly litigious—too inclined to go to court to settle
differences. They assert that “frivolous” lawsuits have overcrowded court dockets and excessive damage awards have unnecessarily driven up insurance premiums and other business
costs. As a result, most Republican leaders have joined with groups representing defendants
in civil actions, the Texas Civil Justice League, Texans for Lawsuit Reform, insurance companies, and a wide range of business and medical interest groups to urge tort reform to limit
tort reform
Efforts to limit liability
liability in civil cases.
in civil cases.
Because of the power of this political alliance, Texas has given judges the power to dismiss
frivolous lawsuits and has capped jury awards for punitive damages intended to punish the
defendant. And Texans narrowly approved a constitutional amendment to allow the legislature to limit claims
IMAGE 10.1 Texas Department of Insurance data
for pain and suffering.
show that medical malpractice suits have declined by
Consumer and environmentalist groups, Public Cititwo-thirds since tort reform was adopted in Texas.
zen, Texas Watch, Texans for Public Justice, the Texas
Trial Lawyers Association, and most Democratic Party
leaders generally oppose sweeping tort reform of the type
Texas has enacted. They argue that isolated anecdotal
instances of lawsuit abuse should not be used as a justification to restrict the fundamental right to trial by jury. They
contend that only a jury hearing all evidence presented by
both sides can make an appropriate judgment in cases of
extreme negligence or abuse of an individual’s rights.
Plaintiffs’ attorneys view tort reform as a big business
attack on the laws protecting consumers against defective
products and deceptive trade practices; they argue that
the threat of meaningful civil action is the only way to
hold manufacturers and professionals responsible for
their actions and to force companies to improve safety
Should statewide statutes limit malprac★ SRQ
procedures. Tort reform makes lawyers reluctant to take
tice claims, or should juries be allowed to
the risk of bringing costly and time-consuming lawsuits
evaluate them on a case-by-case basis?
against well-funded corporations. Under Texas’s new
“loser pays” system, if either party refuses an out-of-court
settlement and if the jury awards damages significantly
different from the settlement offer, the loser must pay all of the “winner’s” legal expenses.
Tort reform issues are often the primary driving force in judicial campaigns. Corporations, insurance companies, health professionals, and frequently sued business groups generally contribute money to Republican judicial candidates, who are inclined to interpret the law
to limit damages in civil lawsuits. Consumer groups, environmentalists, plaintiffs’ lawyers,
patient rights groups, and workers’ organizations usually rally around Democratic judicial
candidates, who tend to be friendlier to their causes. Our Texas Insiders feature puts a face
on the political battle over tort reform.
UpperCut Images/Alamy Stock Photo
These are only a few selected illustrations of civil law.
More valuable to the average Texas citizen is an understanding of the major political issues surrounding civil
suits. In fact, efforts to change civil law have been a
major issue in Texas election campaigns and have occupied much of the legislature’s time and energy.
264
★
10 Law and Due Process
Texas Insiders
Texans for Lawsuit Reform: Interest Groups
and Justice
Dick Trabulsi, the owner of a chain of liquor
stores, and Houston homebuilder Richard
Weekley organized Texans for Lawsuit Reform
(TLR) to support tort reform. Whether or not
one agrees with TLR, there is no doubt that
the group has used political means to change
Texas’s concept of justice.
TLR first became a fund-raising juggernaut
and established itself as a major force in Texas
politics with the election of former Governor
George W. Bush. Funded principally by around
two dozen megadonors, TLR remains one of
the largest and most prominent interest groups
to help bankroll Republican candidates for the
Texas Legislature, the governorship, and the
Texas Supreme Court.
Presenting itself as an opponent of frivolous
lawsuits, TLR argued that excessive damage
awards in civil cases drive up the costs of doing
business and that those costs are passed on
to consumers in the form of higher prices. The
group persuaded the legislature and voters to
amend the Texas Constitution to restrict jury
awards of punitive damages, and it successfully
advocated for a “loser pays” system for legal
fees.
TLR’s opponents, including plaintiffs’ lawyers
who represent consumers, injured workers,
patients, and the insured, believe that tort
reform dramatically altered the rights of injured
parties to sue businesses, medical providers,
and insurance companies. They believe that
eminent domain
Government taking
private property for
public use.
tort reform “went far beyond limiting excessive
jury awards and effectively barred the courtroom door to injured Texans with legitimate
claims.” Mark Kincaid of the Texas Trial Lawyers
Association asked, “What else is left for them
to do?”
Actually, the battle over tort reform extended
into the last gubernatorial election. An ally of
TLR, Republican Greg Abbott had made a number of decisions limiting defendants’ liability
during his time on the Texas Supreme Court
and as attorney general. His Democratic opponent Wendy Davis charged Abbott with hypocrisy for receiving at least $6 million in damages
after suing a homeowner and tree care company over a tree limb snapping, disabling him,
and putting him in a wheelchair.
Thinking about the role of elites in
Texas politics
The Texas political system tends to over-represent concentrated interests at the expense of
diffused interests. Insurance companies, health
care providers, manufacturers, and retailers
are often sued and have a strong interest in
organizing to limit legal actions that raise their
cost of doing business. Meanwhile, workers,
patients, and consumers have little motivation
to organize to protect their right to recover
damages on the off chance that they will be
injured by lax workplace safety standards,
medical malpractice, or defective products.
★ SRQ
How do unorganized interests
protect themselves in the political
system?
Liability Insurance Automobile insurance is one area for tort reform that the Texas
legislature has not seriously considered. A no-fault insurance plan would allow an insured
person to collect damages from the individual’s own insurance company regardless of who
is at fault in an accident. Under Texas’s liability insurance plan, an expensive and timeconsuming legal effort is often required to determine which of the individuals involved in
an accident is to blame and thus legally responsible for damages. With no-fault insurance,
insurance company costs for court trials could be substantially reduced, and the resulting
savings could presumably be passed on to policy holders. Although some instances of fraud
have been associated with no-fault insurance, at least a dozen states have successfully used
limited no-fault insurance programs.
Eminent Domain The Texas Constitution, like the U.S. Constitution, requires that
owners must be given adequate or just compensation in cases of eminent domain, when
The Elements of Crime
265
government takes their private property for public use. “Just compensation” has long been
interpreted to mean fair market value. Recently, however, the meaning of “public use” has
become controversial. The U.S. Supreme Court interpreted public use to include private commercial development as long as it benefits the community as a whole.1 In its ruling, the Court
approved a city government seizing private residences to make way for a resort hotel, office
buildings, and posh apartments.
Although this is the interpretation of “use” that was used in Texas and many other states,
property rights advocates were outraged. They hoped that the Court would ban taking, or
condemning, private property for the benefit of other investors. Property rights activists
argued that wealthy, politically well-connected buyers have the power to profit by influencing government to displace homeowners from property to use it for their own purposes.
In response, Texas limited government’s power of eminent domain. The legislature banned
state and local governments from condemning private property for economic development
projects except roads, parks, libraries, auditoriums, ports, and utilities. Local governments
may still use eminent domain for flood control and urban renewal projects.
The Elements of Crime
LO 10.2 Analyze the elements and causes of crime.
Although politicians have made crime a national issue, only 5 percent of crimes are actually
prosecuted under federal law. Criminal justice policies are made primarily by states, not the
federal government.
An act of Congress provides that federal offenses include crimes (1) committed on the
high seas; (2) committed on federal property, territories, and reservations; (3) involving the
crossing of state or national boundaries; (4) interfering with interstate commerce; or (5) committed against the national government or its employees while they are engaged in official
duties. Otherwise, the vast majority of crimes are violations of state rather than federal law.
The Crime
A crime is an act that violates whatever a legislature defines as penal law. Many obey the law
simply because it is law; others obey out of fear of punishment. Nevertheless, it is people’s
basic attitudes and values that are most important in determining whether they will respect or
disobey a law. If a law reflects the values of most of society, as the law against murder does, it
is usually obeyed. However, if a large element of society does not accept the values protected
by law—such as alcohol prohibition in the 1920s or marijuana prohibition today—violation
becomes widespread.
Felonies Serious crimes punishable by state institutions are felonies such as those shown
in Table 10.1. Murder is the illegal, willful killing of another human being. Robbery is
attempting to take something from a person by force or threat of force. It is inaccurate to say
that “a house was robbed”—this implies that a masked bandit stood at the front door with
a pistol drawn on the doorbell and demanded that the building deliver up all its valuables.
Buildings are burglarized—unlawfully entered to commit a felony or theft.
Theft (larceny) is simply taking property from the rightful possession of another. Grand
larceny—taking something valued more than $1,500—is a felony. Regardless of value, livestock rustling is a felony. It is also a felony for an adult to have sexual relations with a child
less than 17 years of age.
Misdemeanors In Texas, it is a crime to disturb game hunters or for a commercial
fisherman to possess a flounder less than 12 inches in length. Possession of tobacco by minors
felonies
Serious crimes punishable by state
institutions.
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10
Law and Due Process
TABLE 10.1 Crime and Punishment under the Texas Penal Code
Offense
Examples
Terms*
Maximum Fine
Capital murder
Murder of a police officer, firefighter, prison
guard, or child younger than the age of 6;
murder for hire; murder committed with certain
other felonies; mass murder
Execution or life
sentence without
parole
N/A
First-degree felony
Aggravated sexual assault, theft of money
or property greater than $200,000, robbery,
murder, sale of more than 4 grams of “hard”
drugs such as heroin
5 to 99 years
$10,000
Second-degree felony
Theft of money or property greater than
$100,000, burglary of a habitation
2 to 20 years
$10,000
Third-degree felony
Theft of money or property greater than
$20,000, drive-by shootings, involuntary
manslaughter
2 to 10 years
$10,000
State jail felony
Theft of money or property greater than $1,500,
burglary of a building other than a habitation,
sale of less than 1 gram of narcotics, auto theft,
forgery
180 days to 2 years
$10,000
Class A misdemeanor
Theft of money or property greater than $500,
driving while intoxicated, resisting arrest,
stalking
Up to 1 year
$4,000
Class B misdemeanor
Theft of money or property greater than $50,
possession of small amounts of marijuana,
reckless conduct (such as pointing a gun at
someone)
Up to 180 days
$2,000
Class C misdemeanor
Theft of money or property less than $50,
smoking in a public elevator, disorderly conduct
(such as indecent exposure)
N/A
$500
* Punishments may be reduced for murder committed in “sudden passion” or enhanced to the next level for crimes involving gang activity (three or more persons), the use of deadly weapons, previous convictions, or hate crimes (motivated by bias on the basis of ethnicity, religion, or sexual orientation).
© Cengage Learning
misdemeanors
Minor crimes punishable by a county jail
sentence or fine.
is outlawed. Most traffic violations are crimes, and the resulting fine is a form of punishment.
Such minor crimes are called misdemeanors and are punishable by a sentence in county jail
or a fine.
Victimless Crimes Whether felonies or misdemeanors, some criminologists consider
such crimes as prostitution, gambling, and illegal drug possession to be victimless crimes
because their primary victims are the criminals themselves. However, the families of these
criminals and society also pay a price for these activities, and they are often linked to more
serious crimes.
The Criminal
What causes people to commit crimes? What leads them to adopt values different from those
reflected in the laws? What are the factors in crime?
The Elements of Crime
IMAGE 10.2 First-offense driving while
intoxicated is a misdemeanor punishable in the
county jail. Here a city police officer conducts a
field sobriety test. Students can access alcoholrelated regulations at www.tabc.state.tx.us.
Age With the decline of traditional family life and the rise of
single-parent households, many young people are inadequately
★ PRQ How much should the law regulate
socialized by adults and generally lack a useful and rewarding
individual conduct when it endanrole in society. They lack the sense of attachment that usually
gers society at large? Consider
goes with a job or a family. The young person who has dropped
personal consumption of tobacco,
narcotics, and fossil fuels in your
out of school or who is unemployed often has difficulty funcanswer. Explain the trade-offs
tioning in legitimate society.
between personal freedoms and
In some neighborhoods, street gangs provide the sole opporthe public good.
tunity for social life and capitalistic endeavor. Membership in a
gang is a powerful source of approval and a sense of belonging—
often a member’s only source—and thus gangs become training grounds in crime for successive generations. Lessons not learned on the streets may be picked up from the thousands of
demonstrations of crime seen in movies or on television and the Internet.
Whether as gangs or individuals, persons younger than the age of 25 commit a disproportionate share of crime. In 2014, those young people made up just 38 percent of the Texas
population but accounted for 45 percent of all arrests for theft, 54 percent for burglary, and
52 percent for arson.2 Americans younger than age 25 accounted for 37 percent of all arrests
nationwide for violent crimes (murder, non-negligent manslaughter, forcible rape, aggravated
assault, and robbery) and 42 percent of property crimes (burglary, theft, motor vehicle theft,
and arson).3 Most of these make up FBI index crimes, which are used as a national barometer
FBI index crimes
Crimes used as a
of the crime rate—murder and non-negligent manslaughter, forcible rape, robbery, aggranational barometer of
vated assault, burglary, grand theft, and motor vehicle theft.
the crime rate—murder
Many people refuse to recognize that the young are major perpetrators of crime, and othand non-negligent
ers are convinced that they will “grow out of it.” The truth is that disproportionate numbers
manslaughter, forcible
rape, robbery, aggraof young people commit crimes and, rather than growing out of it, graduate into more serivated assault, burglary,
ous crime; yet little is done to rehabilitate juveniles early in their criminal careers. Juvenile
grand theft, and motor
courts in Texas provide only limited social services for delinquents, and many have no access
vehicle theft.
to vocational training, employment placement, emergency shelter, foster homes, or halfway
houses. Severely limited in resources and facilities, Texas juvenile facilities not only fail to
correct but also serve as breeding grounds for adult crime.
Gender Far more men than women are arrested for crimes. In 2014, men accounted
for 88 percent of Texans arrested for murder, 85 percent for robbery, and 77 percent for
Yellow Dog Productions/Getty Images
Failing to Accept Social Values Persons who
become criminals vary across the broad spectrum of human personality and come from virtually any of the multitudes of social
and economic classes. Yet persons who typically commit serious crimes are astonishingly similar. For one reason or another,
they are unwilling to accept the values of the people who write
the law. Lawbreakers are disproportionately young, poor, and
members of racial or ethnic minority groups; many have acute
emotional and social problems.
Most crimes are committed by people who in one way or
another are on the fringes of society. In many instances, these
perpetrators simply live in an environment that promotes
despair, low self-esteem, and weak emotional ties to “legitimate” society. Some criminals consciously identify themselves
as victims and rationalize their conduct based on their victim
psychology.
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10
Law and Due Process
aggravated assault.4 Perhaps traditional masculine roles, social positions, and psychological
attitudes make it difficult for some of them to accept certain mores of society. Aggression,
violent sports, assertiveness, protectiveness, and earning money are often regarded as
essentials of a boy’s training for manhood. Apparently, many young men fail to recognize
the distinction between the kind of assertiveness that society approves and the kind it
condemns.
Ethnicity and Race Certain members of minority groups are arrested disproportionately for crime. Although African Americans made up only 12 percent of Texas’s population
in 2014, they accounted for 45 percent of Texans arrested for robbery, 32 percent of murder
arrests, and 29 percent of arrests for aggravated assault. Meanwhile, 38 percent of Texans
were Latinos, but they did not account for a disproportionate share of arrests—41 percent of
arrests for murder, 33 percent for robbery, and 35 percent for aggravated assault.5 Prejudice
among law enforcement agencies may account for some of the disproportionate number of
African Americans arrested, but it is likely that they actually commit a larger share of crime.
Income and Education Poverty is among the social injustices experienced disproportionately by ethnic and racial minorities, but it is by no means unique to them. Poor education and substantial psychological problems are also a result of poverty. The poor, regardless
of racial or ethnic background, are more likely to commit violent crimes than members of the
middle and upper classes.
Urban Life Crime is more likely in large metropolitan areas. More than three-fourths of
all Texans live in densely populated metropolitan areas of more than 50,000 people (called
metropolitan statistical areas). The character of urban life may contribute to crime in that
larger cities are more anonymous and social sanctions seem less effective than in rural areas
and small towns. Not only is there greater freedom in the city to act criminally, but there are
also gangs and other organizations that openly encourage criminal activity. A majority of
inmates in Texas prisons are from the Dallas-Fort Worth, Houston, and San Antonio areas.
Did You
Drug Addiction Addiction contributes to crime in a variety of ways. In 2014, some
139,471 Texans were arrested for narcotics violations,6 and it is impossible to estimate what
percentage of robberies, burglaries, and thefts are committed
to finance illegal habits. Narcotics and alcohol also reduce
inhibitions, and at least one-third of all crimes are commitKnow? A majority of narcotics
ted under their influence.
7
arrests in Texas are for marijuana possession.
Access to Weapons Access to effective weapons is
a factor in violent crime. Few weapons are as efficient and
readily available as firearms, which are used in more than 60 percent of all murders and a
majority of all robberies in Texas.8 These facts generate intense debate about public policy
toward guns.
Gun safety advocates argue that access to guns in the home poses a health risk when
people act on violent or suicidal impulses and have effective weapons at their disposal. People
living in homes with guns are 2.7 times more likely to die from homicide9 and 4.8 times
more likely to die of suicide than those in homes without guns.10 Access to firearms is also
a significant factor in accidental death,11 and guns stolen from homes are a major source of
weapons for criminals.12
Defenders of gun owner rights argue that effective weapons are useful in self-defense,
pointing out that 103 felons were killed in justifiable homicides in Texas in 2014.13 They argue
The Elements of Crime
IMAGE 10.3 UT students protest a new law allow-
ing students to carry guns on campus. The legislature
also passed a separate law allowing license holders to
carry handguns openly in most public places, including
state-run mental institutions. Surprisingly, Texas was
one of the last states to allow open carry of handguns.
White-Collar Crime In contrast to street criminals, few people think of a successful businessperson or
a college professor as being a criminal, yet these people
may stretch the meaning and intent of federal income
tax laws, keep fraudulent business accounts, and pollute
the environment. But because they seldom rob, rape,
murder, or commit other violent acts, they are often
punished less severely. Crimes such as bribery, tax fraud,
business fraud, price-fixing, and embezzlement are
white-collar crimes, usually committed by more prosperous people who have often benefited from the very best
advantages that society has to offer.
Is the public safer with more guns or
★ SRQ
fewer guns?
The American people have paid the costs of whitecollar crime for centuries, but the recent near collapse of
the economy has focused the public’s attention as never
before on white-collar crime. High-profile cases of fraud such as that committed by Bernie
Madoff, R. Allen Sanford, and officials at Enron, and the resulting loss in confidence in the
economy and stock values, cost victims many times more than all robberies, burglaries, and
thefts combined.16
The Victim
Although more affluent areas of the state and nation are sometimes victimized by perpetrators
of street crime, police reports demonstrate that the greatest rates of victimization are in the poor
sections of our cities. Crime is largely a neighborhood affair and is often committed against
friends and families of the criminal. Acquaintance rape, or date rape, has been well publicized,
and at least 49 percent of Texas killers were acquainted with their victims. In fact, 19 percent
of all murder victims were killed by members of their own family. Young people and African
Americans were most likely to become murder victims—32 percent were African American.17
Victims have the right to be informed of investigations and court proceedings against the
accused and to have their victim impact statements taken into account during sentencing and
parole action. The Texas Crime Victims’ Compensation Fund is administered by the attorney
general and financed by small fees collected from criminals when they are convicted. These
meager funds are available to victims with extreme personal hardships resulting from physical
injury during a crime. However, most victims are not eligible; for example, the fund does not
provide compensation for the billions of dollars of property stolen each year.
Violence-centered local news coverage attracts large audiences, and national reports of
school shootings and gun crime have contributed to widespread fear of becoming a victim of
crime. This fear has been used to promote several agendas, with some advocates supporting
harsher sentences for crimes and others supporting stricter gun control policies. Actually,
Figure 10.1 shows that the crime rate has declined considerably—the crime rate has been cut
in half since 1990.18
Ralph Barrera/Austin American-Statesman via AP
that a large majority of Americans believe that having a
gun in the home makes it a safer place,14 and that proposed gun regulations, such as background checks or
limits on types of guns and ammunition, would have
only a marginal effect, if any, on gun violence. Opponents of gun regulations hold that gun ownership is a
constitutional right15 that deserves protection against
intrusion by government.
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10
Law and Due Process
FIGURE 10.1 Texas Crime Rates since 1990
Crimes per 100,000 Population
This figure shows that the total Texas index crime rate per 100,000 residents has
decreased for more than two decades. The lower graph line shows that the violent
crime rate (for murder, rape, robbery, and aggravated assault) has also declined.
10000
8000
6000
4000
Index Crime Rate
2000
Violent Crime Rate
0
1990
1994
1998
2002
2006
2010
2014
Year
★ CTQ
Why do news media and politicians continue to focus on crime
at a time when crime rates are declining dramatically? Is there
a financial or political agenda driving the public’s fear for their
safety?
Based on Department of Public Safety, Crime in Texas, 2012 (Austin: Department of Public Safety 2013), p.6.
The Due Process of Law
due process
Proper procedures
designed to promote
justice and protect
the individual from
the government. Due
process is essential to
guaranteeing fairness
before the government
may deprive a person of life, liberty, or
property.
LO 10.3 Analyze the concepts of due process.
It is in the courts that the most general concept of justice and the broadest norms of society
are enforced against specific individuals. The courts must blend two conflicting goals of
society: (1) to protect society according to the state’s legal concepts of right and wrong and
(2) to protect the rights of the individual charged with wrongdoing.
Following proper procedures is designed to promote justice and protect the individual
from the government, and together they constitute what is called due process. The Texas
Constitution and the Fourteenth Amendment of the U.S. Constitution require that the state
respect these procedural rights because due process is essential to guaranteeing fairness before
the government may deprive a person of life, liberty, or property.
Figure 10.2 takes a suspect step by step from search through trial and shows the constitutional guarantees that a person should be able to expect as part of the due process of law. But
these rights guaranteed to the accused are very nearly meaningless unless courts, prosecutors,
and law enforcement agents are careful to protect them—in practice, due process depends on
the values of those who administer and interpret the law.
The Search
At certain crucial points in the investigation and apprehension of suspected criminals, society
has for centuries demanded various external checks and limits on law enforcement agencies
to protect the innocent and the presumption of innocence. For example, the Texas Constitution and the Fourth Amendment to the U.S. Constitution prohibit “unreasonable” searches.
However, warrants are not always required; warrantless searches of prisoners (to protect law
enforcement personnel) and pedestrians (to protect the public safety) are permitted. Motor
vehicles may be searched without warrants because it is simply impractical to require a warrant when evidence may be driven away.
The Due Process of Law
FIGURE 10.2 Steps in Criminal Justice and Due Process Guarantees
This figure shows the major steps in criminal justice, from search to trial, along with
the basic constitutional rights to due process that should be guaranteed at each step.
Steps in Criminal Process
Due Process Guarantees
Search
Reasonable Search Based on
Probable Cause
Arrest
Reasonable Arrest Based on
Probable Cause
Miranda Warnings
Arraignment
Reading of Charges
Right to Remain Silent
Right to an Attorney
Bail
Grand Jury
Sufficient Evidence for Trial
Indictment
Formal Charges
Trial
Trial by Jury
Right to an Attorney
Adversary Process
Presumption of Innocence
★ CTQ
Take a suspect from arrest through trial and show the importance of each constitutional guarantee. How is each of these
guarantees implemented in actual practice?
© 2018 Cengage Learning
Probable Cause For the most part, the reasonableness of a search is determined by
supposedly neutral and independent courts, which supervise the law enforcement agencies
that propose to intrude on private premises in search of evidence. In Texas, justices of the
peace, municipal court judges, or other magistrates appointed by district courts usually
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272
10 Law and Due Process
probable cause
Sufficient information
to lead a “reasonable
person” to believe
that evidence is probably contained on
the premises and
thus a warrant for the
invasion of privacy is
justified.
determine probable cause—whether the facts and circumstances are sufficient to lead a “reasonable person” to believe that evidence is probably contained on the premises and thus a
warrant for the invasion of privacy is justified.
The U.S. Supreme Court ruled that states must respect an exclusionary rule, under which
evidence resulting from unreasonable searches could not be admitted in court.19 Excluding
wrongly obtained evidence discourages law enforcement agents from engaging in illegal invasions of privacy because the evidence obtained may not be used against the accused.
exclusionary rule
Evidence resulting
from unreasonable
searches may not be
admitted in court.
Like privacy, an individual’s liberty is a particularly valued right. The mere fact that a person has been arrested may damage his or her reputation in the community. In short, arrest
is in itself a form of punishment. To prevent arrests for frivolous causes, the courts may
issue warrants authorizing police to arrest suspects. In Texas, magistrates issue a warrant to
take a person into custody when they are presented with probable cause that the person has
committed a crime, when a prosecutor files for a writ of information to charge a person for
a misdemeanor, or when a grand jury issues an indictment to charge a person with a felony.
Police officers may make arrests without a warrant when they have probable cause and
when circumstances do not permit their obtaining one. They may make arrests for crimes
they witness or those that are reported directly to them by a witness. Although an arrest
resulting from investigation is technically illegal without a warrant, police have considerable
flexibility.
The time between a person’s arrest and appearance before a magistrate is critical. Historically, this period was a time of much police abuse, during which law enforcement officers
sometimes used physical violence or “third-degree” psychological tactics. Police would also
delay taking a suspect before a magistrate because probable cause for arrest would have to be
shown and the suspect informed of certain constitutional rights. As a result, law enforcement
agents were able to extract confessions or other evidence from frightened and sometimes
abused suspects.
The U.S. Supreme Court ruled that confessions obtained in this manner are unreliable and
violate the guarantees against forced self-incrimination in the Fifth and Fourteenth Amendments to the U.S. Constitution. In Miranda v. Arizona,20 the Court ruled that for a confession
resulting from an interrogation to be valid, the prisoner would need to be reminded of certain
rights in what came to be known as the Miranda warning:
The Arrest
1. The suspect has the right to remain silent.
2. Any statement made may be used against the suspect.
3. The suspect has the right to an attorney, whether or not he or she can afford one.
Prisoners are usually given this warning at the time of arrest to ensure that possible confessions will be admissible, even though some types of confessions are valid even if the warning
was not given.
The Arraignment
arraignment
A prisoner’s initial
appearance before a
magistrate in which
the charges and basic
rights are explained.
After arrest, the suspect is jailed while reports are completed and the district attorney’s office
decides whether to file charges and what bail to recommend. As soon as is practical, the
accused is presented before a justice of the peace or other magistrate. This initial arraignment
is a prisoner’s initial appearance before a magistrate in which the charges and basic rights are
explained. Its purpose is to:
1. Explain the charges against the accused.
2. Remind the suspect of the rights to remain silent and to be represented by counsel and to
request a written acknowledgment that the Miranda warning was given and understood.
The Due Process of Law
273
3. Set bail.
4. Inform the accused of the right to an examining trial.
The Charges The suspect is usually told the charges multiple times—upon arrest, in
the arraignment, and again in subsequent proceedings. Being told the nature of charges is one
of the most fundamental aspects of due process. Because
the state is a government of laws, a person should never
be held in custody on a whim but only for legal cause.
Did You Know? The federal Fifth Circuit
In other words, there must be sufficient justification—
Court of Appeals reversed one conviction because
probable cause—for being held.
the defendant’s attorney repeatedly fell asleep during
The Right to an Attorney The right to coun-
the trial.
sel is vital to the accused—an attorney should clearly
understand the constitutional rights of the accused and
be familiar with the intricacies of the law and the courts. So important is the assistance of
counsel that many suspects will contact an attorney even before they first appear in front of
a magistrate.
Yet this right to counsel has never been absolute. Historically, the right to counsel was
interpreted to mean that the accused had a right to an attorney if he or she could afford
one. In a series of cases, the courts later extended this right to a court-appointed attorney in
felony and serious misdemeanor cases when the defendant could not afford one.21 Even today,
however, the right to court-appointed counsel does not necessarily guarantee equal justice for
the poor.
Some Texas counties still rely on an assigned counsel system in which private lawyers are
selected and paid on a case-by-case basis or in which they work by contract to defend a group
of indigent cases assigned to them. Paid by the county, some attorneys find that time spent
defending poor people does not significantly advance either their practice or their income.
Other attorneys have developed highly successful practices based on indigent defense, and
some judges have been charged with cronyism for assigning cases to lawyers who have contributed to their political campaigns.
A number of Texas counties have established a system of salaried full-time public defenders
to serve as advocates for indigents in serious criminal cases. Supporters of a public defender
system have argued that it is more professional and less costly than the assigned counsel
system. Despite the reforms adopted in some counties, the quality of indigent representation
varies tremendously from county to county and from defendant to defendant.
Setting Bail The security deposit required for the release of a suspect awaiting trial
is known as bail. Some persons released on bail fail to appear in court, and their security deposit is forfeited. Others commit still more crimes while out on bail. However, the
legal system presumes that an individual is innocent unless convicted, and bail supports this
assumption by permitting the accused to resume a normal professional and social life while
preparing a defense.
Although bail may be reset or denied following indictment, the Texas Constitution guarantees the right to bail immediately after arrest, except where proof is “evident” in capital
cases or when the defendant is being charged with a third felony after two previous felony
convictions. The state constitution allows bail to be denied if the defendant is charged with
committing a felony while released on bail or under indictment for another felony.
In practice, the right to bail exists only for those who can afford it. Private, licensed bonding companies may be willing to post bond for a fee (usually 10 to 50 percent of the bail
amount set by the court), which, unlike bail, is not refunded. Many defendants cannot afford
bail
The security deposit
required for the
release of a suspect
awaiting trial.
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Law and Due Process
even this fee, and unless released on personal recognizance (the defendant’s personal promise
to appear), the prisoner will await trial in jail.
Bail was designed to free a person not yet found guilty of a crime, but some innocent
people await trial in jail, unable to work, carry on their family life, or gather evidence for
their own defense. In our criminal justice system, bail procedures, more than any other single
practice, punish the poor for their poverty—a majority of Texas’s jail inmates are simply
awaiting trial and have not yet been convicted. Meanwhile, professional criminals released on
bail often return to work. They may even commit more crimes to pay their attorneys’ retainers and bonding fees.
Although few defendants request one, the accused has the right to an examining trial in
felony cases. A magistrate reviews the facts to determine whether there is sufficient evidence to
send the case to a grand jury. If the facts warrant, the charges may be dismissed or bail adjusted.
The Grand Jury and Pretrial Activity
kenny1/Shutterstock.com
Although a grand jury sometimes issues an indictment before the accused is arrested, a felony case is usually bound over to a grand jury for indictment after arrest and arraignment.
A grand jury should not be confused with a petit jury, which is the trial jury. Grand juries
do not determine a person’s guilt or innocence as trial juries do; the accused may not even be
asked to appear before the grand jury. Instead of hearing the defense, the grand jury primarily weighs the
IMAGE 10.4 Grand juries operate behind closed
evidence in the hands of the prosecutor to determine
doors to protect the identity of innocents.
whether there is sufficient evidence to convict when
the case is taken to trial. If it determines the existence
of such evidence, the grand jury returns a “true bill”
approving an indictment, which constitutes formal
charges that enable the case to go to trial; only rarely
does a grand jury refuse to indict by issuing a “no bill.”
If the prosecutor does not have enough evidence to
convict, there is no point in bringing the case to trial.
Trying a case on flimsy evidence not only costs the
taxpayers money but also causes the accused to suffer
needless expense, lost time, and a damaged reputation. The right to a grand jury indictment is guaranteed in both the Texas and federal courts to protect
the rights of innocent citizens against harassment on
unjustified charges.
In practice, grand juries are usually made up of
ordinary citizens who have never been trained to
critically evaluate cases and so usually act as a rubber stamp for the prosecutors. Some states have abolAre grand juries effective at preventing
★ SRQ
innocents from being falsely charged?
ished the grand jury in favor of writs of information,
in which a judge evaluates the evidence to determine
if there is sufficient evidence to go to trial. Texas guarantees the right to indictment in all felony cases but uses the writ of information to charge
people with misdemeanors.
Pretrial Hearings After the indictment, the defendant has the right to yet another
hearing, sometimes called the second arraignment. A district judge (rather than a justice
of the peace) presides as the formal indictment is read, and the defendant enters a plea. If
the plea is guilty, a later hearing is scheduled to set punishment. Most often the defendant
The Due Process of Law
pleads not guilty at this point, and the case is placed on the docket scheduling the case
for subsequent trial. Attorneys may present a variety of motions, such as a motion for the
suppression of certain evidence or a motion for delay or a continuance. Other subjects of
pretrial hearings concern possible insanity or change of venue—a change in the site of a
trial.
A person cannot be held morally and criminally responsible for a crime if at the time of the
offense, mental illness made it impossible for the person to recognize that it was wrong. There
is considerable controversy as to the effects of mental disorder, so professional testimony may
be necessary to establish legal insanity, and psychiatric opinion is frequently divided. It is rare
that the courts find a defendant not guilty by reason of insanity.
A change of venue may be necessary when the news media have so publicized a case that it
becomes impossible to select an unbiased jury locally or when inflamed public opinion may
prevent a fair trial. A real tension exists between the rights of the free press and the rights of
the accused, and in a modern society the rights of the accused can be protected only with
great vigilance by the courts.
The Plea Bargain Ideally, the trial is the final step in society’s elaborate guarantees
of due process. Only through the deliberations in the courtroom can our system’s genuine
concern for justice emerge. Yet for most people who are accused of a crime, their final day in
court never comes. In fact, the system is designed to discourage and even punish those who
choose to exercise their right to trial. Most cases end in plea bargaining—a secret bargaining
session with the prosecutor.
Facing overcrowded dockets and limited staff, prosecuting attorneys usually meet with
the accused and offer a deal in exchange for a plea of guilty, which eliminates the need for
a trial. The usual deal is to offer to drop some of the charges, to recommend probation or a
lighter sentence, or to charge the accused with a lesser crime. The prosecutor may agree to
defer prosecution, delaying prosecution and later dropping charges if the defendant agrees to
meet conditions like those required under probation. Such plea agreements save tax money
and court time and may be useful to law enforcement, such as when certain defendants are
given a lighter sentence in exchange for testifying against fellow criminals who have committed more serious crimes.
On the other hand, the guilty obviously benefit from plea bargaining because they are not
punished for the full measure of their crimes. Justice is thus exchanged for a cheaper system
that benefits the guilty. Defense attorneys frequently encourage their clients to accept the
bargain to save them the effort of a courtroom trial, and some become as much agents for the
prosecution as advocates for the defense. The innocent and those who are unwilling to trade
their rights for a secret backroom bargain take the chance of being punished more severely
for demanding a trial.
The Trial
Unless the defense waives the right to a trial by jury, the first major step in a trial is the selection of a jury. The right to a trial by jury is often regarded as one of the most valuable rights
available in the criminal justice system.22 In fact, every state provides for trial by jury in all
but the most minor cases, and Texas goes even further, providing for the right to trial by jury
in every criminal case.
Nevertheless, the right to trial by jury in a criminal case is one of the most frequently
waived rights, especially in cases where the defendant is an object of community prejudice or
if the alleged crime is particularly outrageous. If the right to a jury trial is waived, the presiding judge determines the verdict. Regardless of whether or not a person chooses to exercise
275
276
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Law and Due Process
it, the right to trial by jury remains a valuable alternative to decisions by possibly arbitrary
judges.
Trial by Jury During initial questioning, known as voir dire questioning, attorneys may
ask prospective jurors about their possible biases, their previous knowledge of the case, or
any opinions they may have formed. Either the prosecution or the defense may challenge a
prospective juror for reason of prejudice, and the presiding judge will evaluate that challenge.
Furthermore, both the prosecution and the defense may dismiss some jurors without cause
by using a limited number of peremptory challenges, also called strikes, depending on the
kind of case involved. Considering occupations, social status, and attitudes of possible jurors,
experienced attorneys and prosecutors use peremptory challenges to select a friendly jury.
Some have been known to use psychologists to assist in the selection process, and lucrative
consulting businesses have developed to assist attorneys in jury selection.
adversary process
The process by which
two contesting parties
present opposing
views and evidence in
open court.
The Adversary Process The trial itself is based on an adversary process in which
two parties to a case, the prosecution and the defense, arm themselves with whatever evidence
they can muster and battle in court, under the rules of law, to final judgment. Such a system
cannot operate fairly unless both the defense and the prosecution have an equal opportunity
to influence the verdict. Hence procedural guarantees are designed to ensure that both sides
have equal access to an understanding of the laws and the evidence. So that equal knowledge
of the laws is guaranteed, the legal knowledge of the prosecution is balanced by the right of
the defendant to have legal counsel. Because the government has the power to seize evidence
and to force witnesses to testify under oath, the defense must be given that same power.
In the adversary system, each side can challenge the material evidence and cross-examine
witnesses who have been presented by the opposition. However, only evidence that is presented in court can be evaluated, and both parties to a case have an interest in concealing
evidence that could benefit the opposition.
Because it is the legal responsibility of the prosecutor to prove guilt beyond a reasonable
doubt, the burden of proof lies with the state. The defense has no responsibility to present
evidence of the defendant’s guilt, nor can the defendant be forced to take the stand to testify.
On the other hand, because the responsibility of the prosecutor is to convict the guilty rather
than the innocent, it is a violation of due process for the government to withhold evidence
that could benefit the accused—but it happens. There is no way of knowing how many
unjust verdicts have been rendered because all the evidence was not presented.
The Jury Charge In jury trials, once the evidence has been presented, the judge reads
the charge to the jury—the judge’s instructions about how the law applies in the case. The
judge will instruct the jurors to ignore such things as hearsay testimony and other illegal
evidence to which they may have been exposed during the course of the trial. (Realistically,
however, it is difficult for jurors to erase from their minds the impact of illegal testimony.)
The judge is supposedly neutral and cannot comment on the weight of the evidence that has
been presented.
The Verdict After the judge’s charge to the jury, the prosecution and defense are each
allowed to summarize the case. During their summary remarks, the prosecutor will comment that the evidence points toward guilt, and the defense will conclude that the evidence
is insufficient to prove guilt beyond a reasonable doubt. The jury then retires to decide the
verdict—guilty or not guilty. Texas law requires that all the jurors agree on the verdict in
criminal cases. The judge will declare a mistrial if the jury cannot agree, but the defendant
may be tried again.
The Due Process of Law
277
The Sentence Regardless of whether the judge or the jury determines guilt, the judge
may prescribe the sentence, unless the defendant requests that the jury do so. In considering
the character of the defendant, any past criminal record, and the circumstances surrounding
the crime, the judge may assess a penalty between the minimum and maximum provided by
law. A judge may sentence an offender to probation, which allows the person to serve the
probation
A judge’s sentence
sentence outside a correctional institution under specific restrictions, often under the superallowing an offender
vision of a probation officer. Similarly, a judge may use deferred adjudication to postpone
to serve time outside
final sentencing in a criminal case, and after a satisfactory probationary period, the charges
a correctional instituare dismissed.
tion but under specific
restrictions, often
Judges have a great deal of latitude in assessing penalties, so the fate of a defendant will
under the supervision
depend in large part on the attitudes of the presiding judge. Different judges sometimes assess
of a probation officer.
vastly different penalties for the same crime committed
under similar circumstances.
If the convicted criminal is sentenced to prison, time
Did You Know? A judge in Smith County,
served in jail before and during trial is usually deducted
Texas, required that a defendant marry his girlfriend
from the sentence of the guilty. For the innocent, howand write Bible verses as a condition for probation.
ever, the time served awaiting trial is a casualty of an
imperfect system of justice that underlines the necessity
for care in accusing and trying people.
The Post-Trial Proceedings
To protect the accused from double jeopardy, a person who is acquitted (found not guilty)
cannot be tried again for the same offense. However, protection from double jeopardy is
much more limited than many citizens believe. In the event of a mistrial or an error in procedure in which a person is not acquitted, another trial may be held for the same offense on
the theory that the defendant was never put in jeopardy by the first trial. A person found
not guilty of one crime may be tried for other related offenses. For example, a person who is
accused of driving 75 miles per hour through a school zone, going the wrong way on a oneway street, striking down a child in the crosswalk, and then leaving the scene of the accident
has committed four crimes. Being acquitted of one of them does not free the defendant
of possible charges for each of the other offenses. Likewise, such acts as bank robbery and
kidnapping may violate both federal and state law, and the accused may be tried by both
jurisdictions.
The Appeals Process Although the state cannot appeal a not guilty verdict, because
doing so would constitute double jeopardy, prosecutors may appeal the reversal of a guilty
verdict by a higher court, and the defendant may appeal a guilty verdict. Misdemeanor cases
from justices of the peace and municipal courts may be either appealed or completely retried,
de novo, in the county courts. Appeals from county and district courts go to one of 14 courts
of appeals and finally to the Texas Court of Criminal Appeals.
Appellate procedure is designed to review the law as applied by lower courts, not to
evaluate evidence to determine guilt or innocence. Its major concern is procedure. Even if
overruled, the antics of defense attorneys in raising frequent objections to court procedure
may build a case for appeal. If serious procedural errors are found, the appellate courts
may return the case to a lower court for retrial. Such a retrial does not constitute double
jeopardy.
Having exhausted the rights of appeal in the Texas courts, a very few cases are appealed
to the federal courts, which have jurisdiction in federal law. Thus, the grounds for appeal to
federal courts would be the assertion that the state courts have violated the U.S. Constitution
or other federal law.
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Law and Due Process
The Special Case of Juveniles
IMAGE 10.5 Texas allows children to be tried as
adults at age 14. Children tried as adults seem to be
more likely to commit future crimes than those who are
dealt with in the juvenile system, according to the U.S.
Centers for Disease Control and Prevention.23
UPPA/Photoshot
As the result of a reform effort in the nineteenth century, most states began to provide special treatment
for children. Texas followed their lead by replacing
all adult criminal procedures in juvenile cases with
special civil procedures. Under the legal fiction that
juveniles were not being punished for crimes, lax procedures were used that would never have been permitted in adult criminal courts. Court proceedings
were secret, the rights to counsel and to trial by jury
were ignored, standards of evidence were relaxed, and
frequently charges were not specific.
As a result of federal court rulings, much of
due process has since been restored to juvenile
proceedings—except the rights to bail, a grand jury
indictment, and a public trial. Juvenile proceedings
remain civil, and juvenile records may be sealed from
the public with the approval of the juvenile judge,
who is usually appointed by the county’s judges or
juvenile board to have exclusive jurisdiction in such
How should the legal rights and responcases. The law allows juvenile felony arrest warrants
sibilities of children differ from those of
to be entered into statewide computers, and police
adults?
can gather information such as juvenile fingerprints
and photographs.
A majority of children arrested for lesser crimes are
counseled and released on probation into the custody of their parents or placed in county
facilities. Some of the more serious offenders are institutionalized at state training schools,
boot camps, and halfway houses operated by the Texas Juvenile Justice Board. The most serious offenders over age 13 may be certified to stand criminal trial as adults.
★ SRQ
Rehabilitation and Punishment
LO 10.4 Evaluate punishment and rehabilitation policies.
By providing public institutions that extract justice, society offers an alternative to private
revenge and the resulting feuds that plagued the early stages of Western civilization. Until
the eighteenth century, punishment meant imposing physical or financial pain. But ideas of
human dignity led to the development of prisons to deny a person liberty as a more humane
way of punishing. Today, although some prisoners brutalize each other, the death penalty is
the only remnant of formal physical punishment left in the law.
Felony Punishment
The Texas Department of Criminal Justice (TDCJ) supervises the state’s adult correctional
functions for convicted felons—probation, prison, and parole.
Probation Probation allows convicts to serve their sentences outside prisons but under
varying degrees of supervision—probationers may be required to report to probation officers,
submit to electronic monitoring, undergo treatment for chemical dependency, or live in community residence facilities or restitution centers. Although probation functions are largely
the responsibilities of local community supervision and corrections departments, TDCJ sets
Rehabilitation and Punishment
standards and provides funding, training, information,
and technical assistance to local officers.
Prison The criminal justice department also operates
279
Did You Know?
Only Alabama, Arizona,
Arkansas, Mississippi, Louisiana, and Oklahoma have
a larger percentage of their populations in prison than
Texas.24
correctional institutions for those offenders not granted
probation. Texas has privatized some of its prisons and
state jails, which now operate under contract with several
prison management companies such as the Corrections
Corporation of America. Texas’s prison population has tripled since the mid-1980s, and
prison facilities, state jails, transfer facilities, and other confinement units now accommodate
more than 150,000 inmates.
Parole After an initial stay in prison, parole allows many inmates to serve the remainder
of their sentences under supervision in the community. The Board of Pardons and Paroles
decides which inmates will be granted early release under parole, and the TDCJ is responsible
for their supervision after release.
Inmates serving life sentences for capital crimes are not eligible for parole, and those
convicted of other violent offenses must serve at least one-half of their sentences before being
considered for parole. Those convicted of other offenses must serve only one-fourth of their
sentences or 15 years, whichever is less. However, additional time against the sentence is
allowed for making a positive effort toward rehabilitation, good behavior, and providing
various services such as serving as a prison trusty assigned to assist prison staff. As a result,
an inmate may become eligible for parole in fewer calendar years than the original sentence
indicated.
The Board of Pardons and Paroles does not grant parole automatically when prisoners
become eligible. Instead, the board examines each inmate’s record for positive evidence of
rehabilitation. When granted parole, the freed prisoner must abide by strict codes of conduct
under the general supervision of parole officers.
Parole, as the concept has developed, should not be forgiveness but a continuation of the
process of correction. Parole rehabilitation is based on the idea that the elimination of antisocial attitudes can be more effectively accomplished when the individual is not severed from
society. Parole is far less expensive than incarceration—supervision of a prison inmate costs
as much as 20 times that of a parolee. Seeking to cut prison costs, Texas has increased its
efforts to reintegrate parolees back into society, and these efforts may gradually reduce parole
revocations in future years.
Clemency Although it rarely does so, the Board of Pardons and Paroles may take the
initiative to recommend that the governor grant executive clemency (leniency) such as a pardon, a commutation of sentence, or a reprieve. Because conviction for crime carries a legal
condemnation as well as a possible sentence, a full pardon is designed to absolve a citizen
from the legal consequences of his or her crime. A commutation of sentence is a reduction in
punishment. A reprieve is temporary interruption of punishment. The governor may grant
less, but not more, clemency than the board recommends. Without board approval, the governor may grant only one 30-day reprieve to delay execution in a capital case.
Misdemeanor Punishment
State government assumes the responsibility for convicted felons, but those convicted of the
misdemeanors for which confinement is prescribed will serve their terms in jails operated by
local governments, usually counties. Jails often fail to rehabilitate because jail staffs and physical facilities are designed to maintain custody rather than to rehabilitate. Many prisoners in
parole
After an initial stay in
prison, prisoners serving the remainder of
their sentences under
supervision in the
community.
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Law and Due Process
county jails are either awaiting trial or being held for other agencies (federal or state)—these
jails are designed as human warehouses.
Those who are actually serving their sentences in a county jail will be there for only a short
period of time, usually less than one year. This is insufficient time to correct criminal attitudes that the prisoner may have been forming for a lifetime. Many of those who serve their
sentences in local jails have been convicted of habitual vices such as gambling, prostitution,
and drunkenness, which are not amenable to rehabilitation in a jail setting. Some courts,
however, are now beginning to use diversionary programs that allow minor drug offenders to
undergo rehabilitation as an alternative to jail sentences.
Evaluating Punishment and Rehabilitation Policies
Texas jails and penitentiaries are intended to have several functions:
deterrence
Discouraging criminal
behavior by threat of
punishment.
rehabilitation
The effort to correct
criminals’ antisocial
attitudes and behavior.
1. Justice, including punishment (or social vengeance), is society’s way of settling accounts
with those who have violated its norms. The concept of justice normally requires that the
punishment should fit the crime.
2. Isolation of criminals from the law-abiding population is designed to protect society from
future crimes. Yet for most crimes, society is unwilling to prescribe the permanent imprisonment of convicted criminals.
3. Deterrence of criminals is society’s effort at discouraging criminal behavior by threat of
punishment; society uses punishment of convicted criminals as an example to discourage
would-be lawbreakers.
4. Rehabilitation of convicted criminals is supposed to allow those who are ultimately
released to take useful and noncriminal roles in society—the effort to correct criminals’
antisocial attitudes and behavior.
The strongest critics of the criminal justice system argue that jails and prisons perform
none of these functions in practice. Its defenders contend that the state’s criminal justice policies are at least partially responsible for reducing the state’s crime rate.
Punishment and Isolation Texans have increased legal penalties for crime. Despite
plea bargaining, probation, and parole practices that cut short the punishment and isolation
prescribed in the law, Texas still has one of the highest rates of imprisonment in the nation.
One might expect that states like Texas with high rates of imprisonment would have a
lower crime rate, yet ironically Texas continues to have one of the highest crime rates in the
United States. Table 10.2 shows that Texas has put a far larger percentage of its population in
prison than most other states, yet Figure 10.3 shows that it still has one of the nation’s highest
crime rates. Texas has executed more people than any other state, yet it still has a murder rate
far exceeding that of most other states.
Deterrence Criminologists usually argue that severity of punishment is less important
in deterring crime than the certainty of punishment. Perpetrators rarely consider the severity of punishment when they commit their crimes because they expect to avoid punishment
altogether. In fact, punishment is far from certain in Texas. Most crimes are never reported to
police,25 and even among those index crimes that are known to Texas law enforcement, only
20 percent are cleared with an arrest.26 As a result, the vast majority of criminals are never
punished for the crimes they commit.
Rehabilitation Some inmates may eventually become law-abiding citizens, but for
many inmates, prisons are failures as institutions of rehabilitation—almost half of those
released from prison will again be arrested for crime within three years of their release.27
Rehabilitation and Punishment
281
How Does Texas Compare?
Among the 50 states, only six states have a larger number
of prison inmates per 100,000 population than Texas.
Table 10.2 also shows that Texas has a greater proportion of its population on parole and probation than most
states. Perhaps states with the highest crime rates are the
ones most receptive to a “get tough” approach to crime.
Crime and Punishment
Texas’s crime rate is greater than that of 38 other states—
at least 50 percent higher than states like New York, New
Jersey, and Pennsylvania. Figure 10.3 shows that the highest crime rates are generally in southern and western states.
Ironically, states with the highest crime rates happen to
be among those with the most severe criminal penalties.
WA
2
MT
29
OR
20
CA
27
ID
48
NV
17
NH
VT 43
50
ND
35
MN
30
SD
41
WY
42
IA
36
NE
28
UT
21
CO
26
AZ
10
KS
22
OK
13
NM
1
WI
38
AK
14
HI
16
OH
24
IN
23
IL
33
MO
15
KY
32
AR
6
AL
9
PA
40
WV
37
VA
45
NC
18
TN
7
MS
19
TEXAS
12
NY
47
MI
31
GA
8
ME
46
MA
39
RI
4
CT 3
4
4
NJ
49
DE
11
MD
25
SC
4
LA
3
FL
5
Over 3,000
2,000 to 2,999
Under 2,000
12
Ranking among the 50 states
FIGURE 10.3 FBI Index Crime Rates per 100,000 Population, 2014
Source: Federal Bureau of Investigation, Uniform Crime Reports: Crime in the United States, 2010, Table 5 at http://www
.fbi.gov/ about-us/cjis/ucr/crime-in-the-u.s/2010/ crime-in-the-u.s.-2010/tables/10tbl05.xls
TABLE 10.2 Persons in Prison, on Probation, and on Parole per 100,000 Population
Federal
Prisoners
On probation
On parole
50 States
Texas
Texas Ranking among 50 States
61
412
600
7
8
1,560
1,938
9
44
303
556
4
Source: Bureau of Justice Statistics, 2014 data.
FOR DEBATE
★ CTQ
Does Texas have a high rate of imprisonment because it has a high crime
rate, or does the state’s conservative
political culture explain the high rate
of imprisonment?
★ CTQ
From this evidence, is it possible to
say whether the threat of punishment
deters crime? Why or why not?
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10
Law and Due Process
recidivists
Repeat offenders who
have relapsed into
crime.
As many as 80 percent of all felonies may be committed by recidivists—repeat offenders
who have relapsed into crime. A major factor in crime remains the failure of our correctional
systems to correct.
Sizing Up the Death Penalty Debate
While capital punishment is still being debated across the nation, many aspects of the death
penalty can be analyzed by the same standards used to evaluate other forms of punishment.
To what extent does capital punishment achieve justice? Is it an effective deterrent against
crime?
The Case for the Death Penalty Proponents of the death penalty argue that
some crimes such as mass murder and the killing of children are so heinous that no punishment other than the death penalty can achieve justice. The Texas death penalty statute is very
specific in limiting capital punishment to murders committed against children, firefighters,
or law enforcement officers, multiple murders, and murders committed during other felonies
such as rape and robbery.
Death penalty supporters contend that capital punishment is a deterrent to crime and
that would-be murderers and terrorists will avoid putting their own lives in jeopardy by
committing these crimes. Proponents point out that inmates already serving life sentences
would face no additional punishment for murdering prison guards unless they are subject to
the death penalty. Death penalty supporters also argue
that capital punishment is a useful tool in law enforceIMAGE 10.6 Lethal injection gurney. Texas was
ment; interrogators and prosecutors can use the threat
the first state to use lethal injection in executions.
of a death sentence as a way of persuading suspects to
Today, it is an option for execution in all states with
the death penalty. Critics argue that the lethal drug
incriminate fellow criminals.
cocktail can cause excruciating pain in still conscious
subjects, who show few signs of discomfort because
of drug-induced paralysis. Despite these arguments,
the U.S. Supreme Court ruled that lethal injection
does not violate the Eighth Amendment ban on cruel
and unusual punishment.30
AP Images/Pat Sullivan
The Case against the Death Penalty
★ PRQ
What are the ethical reasons to keep
the death penalty? What ethical arguments can be made to abolish it?
Critics of the death penalty argue that capital punishment is not a deterrent to crime. Ironically, states with
capital punishment have consistently had a higher murder rate than the states without it. For example, in 2013,
the average murder rate was 4.7 per 100,000 in states
with the death penalty, while the murder rate in states
without it was only 3.9.28 A historic pattern of such statistics has been interpreted to mean that death penalty
laws do not act as a deterrent to murder.
Opponents believe that killing can never be just, even
when it is punishment for a crime. They contend that
justice cannot be served when innocent people may be
executed. More than a dozen inmates on Texas’s death
row have been exonerated, and there is a real danger
that innocent persons can be and have been executed.
Pointing to examples like that of Cameron Todd Willingham,29 opponents argue that once such a prisoner
has been wrongfully executed, the mistake can never be
corrected.
Instead, opponents argue that every state now allows
adequate alternatives to the death penalty. Life sentences without the possibility of parole serve justice and
are far less expensive than the death penalty process.
Applying What You Have Learned about Law and Due Process
Many states seem to agree with this logic. Nineteen states have now abolished the death
penalty altogether; in those states that still include capital punishment in their penal codes,
prosecutors are seeking the death penalty less often. Only six, mostly southern, states actually
executed inmates in 2015, and a majority of those executions were in Texas, Missouri, and
Georgia.31
Applying What You Have Learned about
Law and Due Process
LO 10.5 Apply what you have learned about the due process of law.
You learned that in 2015 about 140,000 people were arrested in Texas for narcotics
violations—most for marijuana violations. Yet the widespread use of marijuana brings into
question the effectiveness of its prohibition. In fact, both liberal and conservative criminal
justice reformers have advocated reducing penalties and increasing drug treatment programs
for nonviolent offenders as a more humane and inexpensive approach to marijuana policy.
Some reformers have focused on the legalization of marijuana for specific medical uses
as illustrated in Image 10.7. However, despite growing evidence to the contrary, the federal
government still classifies marijuana as a Schedule 1 substance (the same category as heroin
and LSD)—meaning that it has no currently accepted medical value and a high potential
for abuse. So we asked Phillip Martin to fill you in on the practical political effort to reform
Texas marijuana laws.
Phillip Martin is the deputy director of Progress Texas, a nonprofit public relations shop
promoting progressive ideals and public policies in Texas. Prior to joining Progress Texas,
Martin served as the policy director for the Legislative Study Group (a progressive caucus
in the Texas House). Martin also previously served as chief of staff for State Representative
Garnet Coleman and worked with the Texas Democratic Trust, a political action committee
dedicated to increasing the number of Democrats in the Texas House.
Once you have read Martin’s article, we will ask you to think critically about the marijuana issue.
IMAGE 10.7 Many Texas veterans who suffer from post-traumatic stress disorder
(PTSD) and other injuries related to their service use marijuana to provide relief. In
doing so, they run the risk of being arrested and jailed, which has led groups like
Texas NORML to launch a public relations campaign highlighting the plight of these
veterans, Operation Trapped, to pressure lawmakers to legalize medical marijuana
in Texas.
283
284
10
Law and Due Process
★
POLITICS IN PR ACTICE
Marijuana Policy Reform in Texas
by Phillip Martin
Deputy Director of Progress Texas
Marijuana policy reform can improve public safety, boost the economy, and provide muchneeded health care options for struggling Texans.
Like any other major shift in public policy, improving Texas’ marijuana laws requires overcoming political and regulatory changes that may take years to fulfill. Advocates must also
guard against laws that look like victories, but can also set back the work they are trying to
achieve.
Take, for example, Texas’ first medical marijuana law. On the final day of the legislative
session in 2015, Texas Governor Greg Abbott held a public bill signing for Senate Bill 339,
which allowed Texas to license facilities to cultivate, manufacture, and dispense CBD-oil to
assist with the treatment of child patients suffering from epilepsy. Gov. Abbott celebrated the
“healing and hope for children” and families that could now access this medical marijuana.
Except, they can’t. The law requires patients to get a doctor’s prescription for the medicine.
That’s problematic, since many doctors are unwilling to prescribe marijuana so long as it is
classified as a Schedule 1 drug by the federal government. States with successful medical
marijuana programs allow for a doctor’s recommendation, not a prescription.
Even if a patient could secure a prescription, the CBD-only marijuana by-product may not
help cure the seizures. The medical marijuana that’s famously cured children’s seizures in
Colorado and other states contains THC, the psychoactive element of the plant, which is still
prohibited by Texas law.
Our marijuana advocacy coalition was conflicted on this bill. Among the 25+ organizations
and 25,000 advocates that contacted legislators in support of marijuana policy reform, the
legislation was both a triumph and a disappointment. It was great for Texas to finally recognize that marijuana has some medicinal value. At the same time, the law is so limited it may
not help anyone—even the kids Gov. Abbott celebrated that last day of session.
And that’s all before the regulatory process is completed. The bill instructed the Texas
Department of Public Safety (DPS) to create regulations for what companies must do to
successfully procure a state license for cultivating, manufacturing, and dispensing of the
CBD-oil. Everything from what kind of security those facilities require to who can work at
the dispensaries must be established by DPS—in a process that is often even more obscure
than working through the Texas Legislature.
All this is to say that marijuana policy reform faces a true uphill battle in the state’s political
and regulatory climate. Fortunately, there is popular support for improving Texas’ marijuana
laws. Seventy-five percent of Texans support improving current laws, which can include:
• Replacing jail time for small possession of marijuana with a simple fine; this could help
remove as many as 70,000 Texans from prison, removing criminal records for nonviolent
offenders who struggle to achieve equal opportunities in employment and housing.
Chapter Summary
285
• Expanding medical marijuana to ensure veterans with PTSD, cancer patients, and others
suffering from debilitating medical conditions have access to medicine that will help them.
• Fully understanding and studying the implications of a marijuana retail market, a process
far more complicated in licensing and administration.
Each of these planks for marijuana policy reform will require the coalition and its thousands
of activists to consider the full range of political challenges, and the regulatory landmines
that could inhibit the growth of the new industry. Since the law passed in 2015, we have done
what we can to organize in communities across the state, work with members of the press
to ensure fair reporting on the subject, and educate lawmakers in the interim on our policy
goals.
Fortunately, marijuana policy reform is widely supported by the public, and unlike so many
issues in Texas, there are no inherent ideological barriers to our work. Republicans and Democrats alike support reform, and Republicans and Democrats alike remain skeptical.
The work in front of us is to build bridges—between myths and reality, skeptics and believers, the public and their elected officials—all year round. The Texas Legislature may only
meet 140 days every other year, but if we want to be successful, our work can never stop.
1. What are arguments against the decriminalization of marijuana? Would it lead to widespread use and threaten public safety? What about the problem of traffic accidents resulting from marijuana-impaired drivers?
2. What are the disadvantages of marijuana prohibition? How much should government be
empowered to limit individual personal choices?
★ Chapter Summary
LO 10.1 Analyze civil law and the policy issues related
to it. Within the American legal system, cases are classified as
either civil or criminal. Civil cases primarily involve the rights of
private parties or organizations. Resolution is based on the concept of responsibility rather than guilt.
Some examples of the broad categories of civil law are family
law, real estate law, probate, corporate law, civil regulations, labor
law, and torts. Recent political issues have developed around
eminent domain, liability insurance, and tort claims. The Texas
legislature has undertaken tort reform in an effort to lighten overcrowded court dockets and limit allegedly frivolous suits. At the
urging of business, insurance companies, and medical professionals, the legislature has restricted lawsuits and limited awards
for damages.
LO 10.2 Analyze the elements and causes of crime. In an
attempt to impose their values on others, the dominant elements
of society have turned to government with its power to define
crime and punish it. Law reflects the values of the people who
make and enforce it. Criminal cases deal with public concepts of
proper behavior and morality as defined by law. Punishment for a
violation of these concepts ranges from a fine to imprisonment to a
combination of both. More serious crimes are called felonies, and
minor crimes are called misdemeanors.
The cause of crime is the failure to accept society’s mores,
which is related to such factors as age, gender, ethnicity, income,
education, urban life, and drug addiction. Overall crime rates
have, in fact, declined in recent years in Texas and in most of the
nation as well.
LO 10.3 Analyze the concepts of due process. The court
procedures that constitute due process aim to promote justice and
protect individuals from government abuse. These procedures
are generally either written into state and national constitutions
and statutes or included in traditional codes of court process. They
govern every step in the criminal justice process, from search and
arrest to trial and final conviction. These procedures guarantee the
rights against unreasonable search and arrest and against forced
self-incrimination. Due process also includes the rights to an attorney, to reasonable bail, and to examining trials; the defendant has
the right to be charged by a reliable process, to be able to present
evidence, and to confront opposing witnesses at a trial by jury.
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Law and Due Process
It is largely through due process that the courts aim to blend
two conflicting goals of society: (1) to protect society according to
the state’s legal concepts of right and wrong and (2) to protect the
rights of the individual charged with wrongdoing. Unfortunately,
the goal of due process is often an ideal rather than a reality.
These careful guarantees of due process are often circumvented
by such practices as plea bargaining.
LO 10.4 Evaluate punishment and rehabilitation policies.
Correctional institutions such as prisons and jails are intended to
punish, isolate, deter, and rehabilitate. Unfortunately, they perform
these functions poorly—the low rates of arrest mean that most
criminals will not be punished or isolated from society, and hence
they are not effectively deterred from committing crimes. Even
among prisoners who have been arrested and punished, a majority of inmates return to crime after their release.
LO 10.5 Apply what you have learned about the due
process of law. You explored alternatives to Texas’s current
marijuana policy that has resulted in the arrest of tens of thousands of Texans annually. You critically evaluated proposals presented by a prominent activist supporting reform.
Key Terms
adversary process, p. 276
arraignment, p. 272
bail, p. 273
deterrence, p. 280
due process, p. 270
eminent domain, p. 264
exclusionary rule, p. 272
FBI index crimes, p. 267
felonies, p. 265
misdemeanors, p. 266
parole, p. 279
plaintiff, p. 261
precedent, p. 261
probable cause, p. 272
probation, p. 277
recidivists, p. 282
rehabilitation, p. 280
tort, p. 262
tort reform, p. 263
Review Questions
LO 10.1 Analyze civil law and the policy issues related
to it.
• Differentiate between civil and criminal law. Give at
least six broad categories of civil law and examples of
each. Explain why each example is classified as civil
rather than criminal law.
• Explain Texas policies regarding eminent domain, auto
liability insurance, and tort reform. What are the political interests on each side of the tort reform controversy?
LO 10.2 Analyze the elements and causes of crime.
• Define criminal law and how it develops from basic
social mores. Distinguish felonies from misdemeanors, and give examples of each.
• Discuss the root causes of crime. What are the social
characteristics of the typical criminal?
LO 10.3 Analyze the concepts of due process.
• Define the due process of law, and explain its origins
in the state and national constitutions.
• Trace the criminal justice process step by step from
search and arrest through final conviction. At each
stage, show how the legal system is designed to guarantee a sense of fair play between the government and
the accused.
• Identify gaps between the theory and practice of due
process. Define plea bargaining and how it affects
due process in practice.
LO 10.4 Evaluate punishment and rehabilitation
policies.
• List the four major purposes of jails and penitentiaries, and evaluate how effectively they achieve each
of them. How does the death penalty measure up
against these standards?
• Discuss whether certainty or severity of punishment
is more effective at preventing recidivism and deterring crime. Why?
Think Critically and Get Active!
287
Think Critically and Get Active!
Deal intelligently with your personal legal matters. For tips on civil legal matters, browse through
www.texaslawhelp.org to get free legal advice, do-ityourself, and low-cost legal strategies relating to bankruptcy, consumer complaints, divorce, identity theft, tenant
rights, utility bills, and a wide range of other topics. Take
control of legal issues in your life—learn about family law,
tenants’ rights, and how to sue in small claims court at
www.texasbar.com. Click on “For the Public” and then
on “Free Legal Information.” Learn how to deal with
identity theft and how to identify registered sex offenders in your neighborhood from the Texas Department of
Public Safety at www.txdps.state.tx.us.
Link up with the group that reflects your position on civil lawsuits. Fight frivolous lawsuits that
drive up the costs of doing business and support limits on civil judgments with Texans for Lawsuit Reform
at www.tortreform.com (@lawsuitreform). Support
workers’, patients’, and consumers’ rights to compensation for negligence from businesses, medical providers, and insurance companies with Texas Watch at
www.texaswatch.org (@TexasWatch).
Get the facts on guns and connect with those who
share your views. Start at www.vox.com/cards/
gun-violence-facts and www.americangunfacts.com,
and follow the National Rifle Association at www.nra
.org (@nra) or the Brady Campaign to End Violence at
www.bradycampaign.org (@Bradybuzz).
Join with those who share your views on crime and
punishment. Fight the death penalty by joining Students
Against the Death Penalty at www.studentabolition.org
or the Texas Coalition to Abolish the Death Penalty at
www.tcadp.org (@TCADPdotORG). Help The Innocence Project free the innocent at www.ipoftexas.org
(@IPofTexas). Find a wealth of information about the death
penalty at the Bureau of Justice Statistics and at the Death
Penalty Information Center at www.deathpenaltyinfo.org
(@DPInfoCtr).
Support capital punishment with Pro-Death Penalty.
com at www.prodeathpenalty.com. Fight for a vigorous
criminal justice system and victims’ rights with Justice
for All at www.jfa.net. Search for studies that show capital punishment as a deterrent to murder.
★ CSQ
Develop a comparative analysis
between Texas and national trends
using Texas Department of Public
safety statistics at www.dps.texas.
gov/administration/crime_records/
pages/ucr.htm and FBI data at www.
fbi.gov/stats-services/crimestats.
Analyze trends in the rates of prosecution, prison, probation, and capital punishment using the data-rich
Bureau of Justice Statistics website at
www.bjs.gov. Use at least three visuals to show these changing trends in
your presentation.
★ PRQ
Identify the ethical issues on both
sides in the death penalty debate.
11
Local Government
Citizens can speak out at meetings of local policy makers. Here is what you would see at a Dallas city council meeting.
City of Dallas
Learning Objectives
LO 11.1 Describe and evaluate the organization and structure of municipal governments.
LO 11.2 Describe and evaluate the organization and structure of county governments.
LO 11.3 Describe and evaluate the organization and structure of special district governments.
LO 11.4 Evaluate the role of councils of governments as local government partners.
LO 11.5 Apply what you have learned about local government.
Municipalities
L
289
general purpose
ocal governments are responsible for a variety of services that substantially affect the
government
public on a daily basis, including law enforcement, mass transit, sewage treatment, flood
A municipal or county
control, and emergency services. Anyone who lives in a metropolitan area is likely to be
government that progoverned by two general purpose governments—municipal and county governments that
vides a wide range of
provide a wide range of public services—in addition to numerous special districts, such
public services.
as school districts, hospital districts, metropolitan transit authorities, and municipal utility
special districts
districts.
Local governments
The sheer number of local governments across Texas and the rest of the nation can chalthat provide single or
lenge even the most interested members of a community who want to contact local officials
closely related services
that are not provided
about the critical needs of their own neighborhood, controversial social issues, or initiatives
by general purpose
that can improve the community’s quality of life. (See Table 11.1 for a comparison of local
county or municipal
governments in Texas and in the United States as a whole.) To more effectively make our
governments.
views known to those who are responsible for making and enforcing policies at the local
level, it is vital that we learn about the inner workings
of local government—that is, the various institutional
features of cities, counties, and special districts. And
Did You Know? Texas has more than 5,000
because so many local problems affect entire regions, it
local governments, most of them governed by officials
is equally important to examine the role that councils of
who are elected by voters.
governments (COGs) play in bringing the variety of local
governments together for the purposes of planning and
coordinating policies.
Municipalities
LO 11.1 Describe and evaluate the organization and structure
of municipal governments.
How are municipalities relevant to our lives? Cities hire police officers and firefighters to
protect the community. Cities enforce building and safety codes, pass anti-litter ordinances,
issue garage sale permits, maintain recycling programs, launch anti-graffiti programs,
impound stray animals for the safety of the community, and enforce curfews. These are just
a few examples of how cities routinely affect our day-to-day lives.
TABLE 11.1 Local Governments and Public School Systems, United
States and Texas, 2012
This table shows the enormous numbers of local governments in the United States
and in Texas.
Total
United States
Texas
County
Municipal
Town or
Township
Special
Districts
School
Districts*
90,056
3,031
19,519
16,364
38,266
12,880
5,147
254
1,214
0
2,600
1,079
* Independent school districts and community college districts.
U.S. Census Bureau, 2012 Census of Governments, Local Governments by Type and State: 2012 at http://factfinder2.
census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.
 How is it possible for ordinary voters to keep track of the numerous elected officials that they elect to local offices? Think of ways to simplify the system of local
governments to make them more accountable to the average citizen.
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11
Local Government
TABLE 11.2 Municipal Governments in Texas, 1952–2012
As general purpose governments, municipal governments provide a variety of services that are critically important to the well-being of communities.
1952
1962
1972
1982
1992
2002
2007
2012
738
866
981
1,121
1,171
1,196
1,209
1,214
U.S. Census Bureau, 2012 Census of Governments, Municipal Governments, General-Purpose Local Governments by State:
Census Years 1942 to 2012 at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk
 How are city governments established?
All local governments are bound by federal and state laws as well as the U.S. and Texas
constitutions. The relationship between states and local governments follows from the fact that
states, including Texas, have a unitary system of government (see Chapter 2). Municipalities—like
counties, special districts, and school districts—are creatures of the state and have only as much
power as the Texas Constitution and Texas Legislature grant them. Texas has seen a marked
increase in the number of municipalities in the state since the 1950s, as shown in Table 11.2.
General Law and Home Rule Cities
general law city
An incorporated community with a population of 5,000 or fewer
that is limited in the
subject matter on
which it may legislate.
home rule city
A city with a population of more than
5,000 that can adopt
its own charter and
structure its local government as it sees fit,
as long as charter provisions and local laws
(also called ordinances)
do not violate national
and state constitutions
and laws.
city charter
The organizing
document for a
municipality.
Texas cities are classified as either general law or home rule cities. A general law city is an
incorporated community with a population of 5,000 or fewer and is limited in the policy
matters on which it may legislate. A city with a population of more than 5,000 may, by majority vote, become a home rule city. This means that it can adopt its own city charter (the
organizing document for a municipality) and structure its local government as it sees fit, as
long as charter provisions and local laws (also called ordinances) do not violate national and
state constitutions and laws.
The Texas Constitution allows a home rule city whose population has dropped to 5,000 or
fewer to retain its home rule designation. According to the Texas Municipal League, the vast
majority of Texas cities—about 75 percent—are general law cities.
Direct Democracy at the Municipal Level Home rule permits local voters
to impose their will directly on government through initiative, referendum, and recall, and
most home rule cities have all three provisions. With the initiative power, local citizens, by
obtaining the signatures of a designated percentage of registered voters, can force a sometimes
reluctant city council to place a proposed ordinance on the ballot. If the proposal passes by a
majority vote, it becomes law. Texas cities have used initiatives to resolve the following issues
by popular vote:
• Should a city allow stores within the city limits to sell beer and wine?
• Should a city freeze the property tax exemption for senior citizens and people with disabilities?
• Should a city increase the minimum wage?
• Should a city impose a cap on the property tax rate?
Voters who want to repeal an existing ordinance can also petition the council to hold
a referendum election to determine whether the law should remain in effect. For example,
Houston voters approved referenda to remove red light cameras and to repeal a nondiscrimination ordinance. Smoking bans were put to a referendum vote in Lubbock and Baytown, but
voters in both cities decided to retain the ban. A referendum election called by a city council
can also permit voters to determine whether a law will go into effect. Finally, voters can, by
Municipalities
petition, force the council to hold a recall election that would permit voters to remove the
mayor or a member of the council before the official’s term expires.
The Limits of Home Rule Although home rule cities have wider latitude than general law cities in their day-to-day operations, they must still contend with state limitations on
their authority. For example, state law determines the specific dates on which municipal elections can be held. Voters are free to amend city charters, but the Texas Constitution permits
cities to hold charter amendment elections only every two years. An election establishing a
metropolitan transit authority can be held only in cities that meet a population requirement
determined by the Texas Legislature. Local governments in Texas are subject to “sunshine”
laws, such as the Public Information Act and the Open Meetings Act.
In addition to these general laws that apply to all cities, the legislature has also passed state
laws specifically to invalidate city ordinances to which legislators have objected. After the city
of Denton passed an ordinance to outlaw hydraulic fracturing within its boundaries, the state
legislature quickly made it illegal for municipalities to regulate “fracking” to produce oil and
gas. Other municipal business regulations have also come under state scrutiny. For example,
the state courts overturned some of Houston’s antipollution ordinances; legislators immediately began an effort to overturn Austin’s ordinance requiring Lyft and Uber rideshare drivers to undergo background checks. Some more liberal home rule cities have been subject to
special scrutiny when they adopt ordinances at odds with the conservative political culture
dominant in most of the state.
Forms of Municipal Government
Council–Manager System In a council–
manager form of government, an elected city council
makes laws and hires a professional administrator who
is responsible for both executing council policies and
managing the day-to-day operations of city government
and who serves at the pleasure of the council. Figure 11.1
shows how the council–manager form is organized.
The city charter and the council assign power to the
city manager. The city manager is usually responsible for
selecting key personnel and for submitting a proposed
budget to the council for its approval. The city council
will likely seek the manager’s opinion on a wide variety of matters, including what tax rate the city should
adopt, whether or not the city should call a bond election, and the feasibility of proposed new ordinances. But
these issues are ultimately up to the council, and the city
manager is expected to implement whatever decisions
the council makes.
In a council–manager form of government, the mayor
may be either selected by the council from among its
members or independently elected by the voters. The
mayor presides over council meetings, has limited or no
veto power, and has for the most part only the same legislative authority as members of the council. The mayor
recall election
An election, called by
petition, that permits
voters to remove an
elected official before
the official’s term
expires.
council–manager form
of government
A form of government
in which an elected
city council makes laws
and hires a professional administrator
who is responsible
for both executing
council policies and
managing the day-today operations of city
government.
IMAGE 11.1 San Antonio Mayor Ivy Taylor heads
a council–manager city, the most common type in
Texas. Despite the relatively weak institutional powers
of the mayor in such a system, several of her predecessors became a force to be reckoned with during their
tenure as mayors of the Alamo City.
Rick Kern/Getty Images
The three common forms of municipal governments are
council–manager, mayor–council, and commission.
291
★ CTQ
Compare the mayor’s powers in a
council–manager system with those of
a strong mayor. How are mayors in a
council–manager system able to develop
political power despite formal limits on
the power of their office?
292
11
Local Government
FIGURE 11.1 The Council–Manager Form of City Government
This figure shows the council–manager form of city government that is used in most
Texas cities. In this form, the voters elect the city council, which then appoints a professional manager to manage the day-to-day operations of city departments.
Council–Manager Form of Government
City Voters
City Council
Mayor is member
Mayor presides
Mayor
Appoints
City Manager
City Departments
Police Fire Clerk Public Works Streets Sanitation Parks Planning
★ PRQ
Since the public does not directly elect the manager, what
measures can the public take to make their views known to city
departments and make them accountable to the people?
Source: Cengage Learning
mayor–council system
A form of municipal
government consisting of a mayor and a
city council; this form
includes both strong
mayor and weak mayor
variations.
strong mayor form
of government
A form of municipal
government in which
the mayor, who is
chosen in a citywide
election, is both the
chief executive and
the leader of the city
council.
also has important ceremonial powers, such as signing proclamations and issuing keys to the
city to important dignitaries.
Although the office is institutionally weak, a high-profile and charismatic mayor can
wield considerable political influence because access to publicity gives the mayor a platform
to develop a loyal political following. Mayors of the two largest Texas cities using the council–
manager system, former San Antonio mayors Henry Cisneros and Julián Castro and former
Dallas mayor Ron Kirk, went on to be appointed as major federal officials.
The idea of the council–manager city structure began as part of a reform movement during the Progressive Era (1900–1920). Reformers were attempting to substitute “efficient and
businesslike management” for the then prevalent system of boss rule, in which politics was
the key consideration in city hall decisions. Although the council–manager system is seen as
a means of separating politics from the administration of city government, critics charge that
its principal shortcoming is that the voters do not directly elect the chief executive officer of
the city.
Mayor–Council System Although most Texas cities now use a council–manager
system, a few, including Houston and Pasadena, still use a mayor–council system to govern
their cities. This system, which consists of a mayor and a city council, includes both strong
mayor and weak mayor variations.
In the strong mayor form of government, the mayor, who is chosen in a citywide election,
is both the chief executive and the leader of the city council. The mayor makes appointments,
Municipalities
293
FIGURE 11.2 The Strong Mayor–Council Form of City Government
This figure shows the strong mayor form of city government such as the one used in
Houston. Voters directly elect the mayor to serve as chief executive in charge of dayto-day city operations.
Strong Mayor–Council Form of Government
City Voters
City Council
Mayor presides
Mayor
City Departments
Police Fire Clerk Public Works Streets Sanitation Parks Planning
★ SRQ
Does a strong mayor have too much power? How does Houston
limit the potential for abuse of power in its city government?
Source: Cengage Learning
prepares the budget, and is responsible for the management of city government. The mayor
also sets the council agenda, proposes policy, and in some cities may veto council actions.
Figure 11.2 shows the organizational structure of the strong mayor form.
Critics of the strong mayor system fear that the office is too powerful and may become
too politicized to distribute services fairly or efficiently. This system conjures up the image
of nineteenth-century urban political party machines led by mayors who appointed political
cronies as department heads, hired campaign workers as city employees, and awarded contracts to supporters.
The strong mayor form of government was the target of urban reformers in the early
twentieth century, but it did not completely die out. Instead, it was often restructured to
include an elected city controller to separate the city’s chief financial office from control by
the mayor’s office. Rules were also adopted to require that contracts must be awarded to the
lowest and best bidder. Other reforms in strong mayor systems have included nonpartisan
elections as well as ethics and campaign finance laws. In some cities, the strong mayor was
stripped of the power to veto city ordinances.
The best Texas example of the strong mayor form is Houston, which has adopted most of
these structural reforms. In addition, Houston’s mayor now appoints professional administrative assistants who help manage city departments, but the mayor can still be held accountable
for mismanagement by being voted out of office.
The weak mayor form of government is found in a few small cities but is very rare in
Texas because of problems with accountability. It lacks unified lines of authority because the
mayor and council share administrative responsibility. Some city officials are elected, others
are selected by the council, and some may be appointed by the mayor. As a result, administrative power is decentralized and voters find it too difficult to know which officials to hold
accountable when problems and mismanagement occur.
weak mayor form
of government
A form of municipal
government in which
the mayor and council
share administrative
authority.
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11
Local Government
commission form
of government
A municipal government in which voters
elect one set of officials who act as both
executives and legislators. The commissioners, sitting together,
are the municipal legislature, but individually
each administers a city
department.
Commission System The commission form of government is another approach to
municipal government that has become almost extinct in Texas. Here, voters elect one set of
officials who act as both executives and legislators. The commissioners, sitting together, are
the municipal legislature, but individually each administers a city department. A manager or
administrative assistant may be employed to assist the commissioners, but ultimate administrative authority still remains with the elected commissioners.
Commissioners may possess technical knowledge about city government because they
supervise city departments. However, because power in the city bureaucracy is fragmented
among separately elected commissioners, coordination is difficult, and the checks-andbalances system is impaired because commissioners serve both legislative and executive
functions—commissioners adopt the budget for the very departments that they administer.
Municipal Election Systems
Mayors and city council members are elected for terms specified in their city charter, usually
two years. Normally scheduled at a different time from the state general election, municipal
elections often require that candidates receive a majority of the vote, and a runoff election
may be required if no candidate receives more than 50 percent.
Nonpartisan Elections In Texas, all city elections are nonpartisan, meaning that
at-large elections
Citywide elections in
which some or all of
the city council members are elected by
voters of the entire
municipality rather
than from neighborhood districts.
pure at-large system
An election system in
which candidates for
city council run citywide and the top votegetters are elected to
fill the number of open
seats.
at-large place system
An election system in
which each candidate
runs citywide for a
specific seat on the
council and voters cast
one vote for each seat
or place.
political parties do not nominate candidates or officially campaign for them. Advocates of
nonpartisan elections contend that municipal issues transcend traditional party divisions and
that party labels are irrelevant. They argue that the two parties are overly polarized and that
qualified candidates should not be excluded simply because they belong to the minority party.
Several other states use partisan elections to select city officials. Supporters of partisan
elections argue that party labels provide voters with useful cues as to how a candidate will
govern; in nonpartisan elections, voters often take their cues from well-financed campaigns.
Parties are useful because they help winnow the field of potential candidates; dozens of candidates sometimes clutter Texas municipal election ballots. Parties mobilize more voters and
generate greater public interest than do nonpartisan campaigns. Critics of nonpartisan elections argue that they are dominated by low-visibility special interests with much to gain from
city contracts and with enough money to hire campaign workers and to flood the airwaves
and digital media with campaign ads.
Texas law requires that municipal elections be nonpartisan, but cities have options when
it comes to adopting single-member districts or at-large election systems. As you will see, the
decision to use one system or the other has enormous legal and political consequences.
Council Election Areas Some cities do not use districts at all. Instead, they use
at-large elections, which are citywide elections in which some or all of the city council members are elected by voters of the entire municipality rather than from neighborhood districts.
At-large systems are of two types.
Some cities use a pure at-large system, in which all candidates for city council run citywide and the top vote-getters are elected to fill the number of open seats. Voters are allowed
to cast as many votes as there are open seats (but can cast only one vote per candidate), with
the winning candidates being those who receive the most votes. For example, if 20 candidates
run for six seats, the six candidates getting the most votes are elected.
Some cities use an at-large place system—each candidate runs citywide for a specific seat
on the council and voters cast one vote for each seat or place. For example, on a seven-member
city council, the ballot would show perhaps several candidates running for place 1, different
candidates running for place 2, and still others running for each place down through place 7.
Voters would be able to cast one vote for each of the seven seats, and the candidate winning
the majority of votes cast citywide would win each particular seat. Variations of either system
Municipalities
may require a specific candidate to live in a particular district of the city, but the candidates
are still elected by all of the voters in the city.
In contrast, in a system with single-member council districts, each council member is
elected from a particular geographic district by only the voters who live in that district.
Supporters of at-large elections say that they promote the public interest because council
members must take a citywide view of problems. They charge that council members elected
from districts are focused on the needs of their district rather than the interests of the community as a whole. Opponents of single-member districts also claim that the election of
individuals who have an outlook limited to their district makes it difficult for the council to
build a consensus about the future of the city.
Critics of at-large elections maintain that the system allows a simple majority of voters to
elect all council members and that, consequently, the interests of racial, ethnic, and ideological minorities in the community are not represented at city hall. Supporters of single-member
districts argue that effective neighborhood representation reflects the diverse interests of the
city; neighborhoods where political, cultural, racial and ethnic minorities live have a chance
to elect at least some members to the city council when a district system is used.
Although major Texas cities usually resisted single-member districts, civil rights organizations such as the Mexican American Legal Defense and Educational Fund (MALDEF), the
League of United Latin American Citizens (LULAC), the American GI Forum, the National
Association for the Advancement of Colored People (NAACP), Texas Rural Legal Aid, and
the Southwest Voter Registration Education Project brought successful legal action, and the
federal courts forced several of them to abandon at-large elections. Several cities have instituted a mixed system in which a majority of the council members are elected from singlemember districts, although the mayor and some of the council members are elected at large.
Although the single-member district election system has served as the primary means of
increasing minority representation on city councils, attention has also been drawn to other
ways of achieving this goal. One alternative system is cumulative voting. Under this plan,
city council members are elected in at-large elections but the number of votes a voter can cast
corresponds to the number of seats on the council. If, for example, the city council has five
seats, a voter can cast all five votes for a single candidate. Or a voter can cast three votes for
one candidate and the remaining two votes for another candidate. In other words, voters can
distribute their votes among the candidates in whatever way they choose.
More than 50 local jurisdictions in Texas have adopted cumulative voting since the 1990s,
most of them school districts. In approximately 20 percent of the communities in which
cumulative voting is used, the method has been adopted by both the school board and the
city council. Civil rights organizations such as the MALDEF and the NAACP have backed
cumulative voting in litigation, and the adoption of this election system is credited with leading to the election of minorities in two Texas independent school districts—Atlanta ISD and
Amarillo ISD. The Amarillo Independent School District is the largest jurisdiction in the
country to use this election system.
Term Limits About 60 Texas cities joined the movement to impose term limits—that is,
restrictions on the number of times that a politician can be reelected to an office or the number of years that a person may hold a particular office. Proponents of term limits believe that
city hall is best governed by new blood and fresh ideas and that limiting the number of terms
for mayors and council members is the best way to achieve that goal. Opponents, though,
worry that cities stand to lose experienced, effective council members because of term limits.
These term limit laws are not uniform. Corpus Christi, for example, allows a person who
has held a seat for four consecutive two-year terms to run again for the seat after sitting
out three terms. In Austin, a council member is limited to two consecutive four-year terms,
but that limit can be waived upon petition by 5 percent of the registered voters the council
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single-member
council districts
An electoral system
in which each counci